roads. Furthermore, there is no explanation of the BIA's mandate in terms
of "maintaining the integrity of the lands and resources." See Cook, 922
F.2d at 1031. The scope of the BIA's responsibilities vis-a-vis the St.
Regis' land is unknown either from Cook of from the present record. There
is no indication, for example, as there was in Venetie III, of even
"minimal land-protections," such as exemption for adverse possession
claims or from real property taxation. See Venetie III, 522 U.S. at 534,
118 S.Ct. at 956. Even if the record here did support a finding of such
"minimal-land protections," it is clear under Venetie III that those
protections standing alone, or in "tandem" with the provision of federal
aid of the type outlined in Cook, would not be "indicia of active federal
control over the Tribe's land sufficient to support a finding of federal
superintendence." See id. (emphasis added).
For all of these reasons, plaintiff Thompson can no longer avoid tax
liability based upon the dependent Indian community status of the St.
E. Cass County
Obviously the court's focus until now has been solely upon Venetie
III. As mentioned at the outset, however, that is only one aspect of the
County's Rule 60(b) motion based upon an alleged change in controlling
law. The County also argues that Cass County resulted in such a change
justifying relief under that Rule.
The Supreme Court held in Cass County that "[w]hen Congress makes
Indian reservation land freely alienable, it manifests an unmistakably
clear intent to render such land subject to state and local taxation."
Cass County, 524 U.S. at 115, 118 S.Ct. at 1911. Further, the Cass
County Court held that "[t]he repurchase of such land by an Indian tribe
does not cause the land to reassume tax-exempt status." Id. In light of
that holding, the County maintains that regardless of whether plaintiff
Thompson's property is Indian country, it is taxable because, as she
concedes, it is alienable. See Healy Aff., exh. 8 thereto at 17; exh.1
thereto at ¶ 4, and exh. 3 thereto at ¶ 5. As she did in arguing
against the application of Venetie III, plaintiff Thompson counters that
"Cass County . . . is consistent . . . with this court's conclusion [in
Thompson IV] that [she] is immune from the County's ad valorem tax." Pl.
Memo. at 13 (emphasis added). Accordingly, she reasons that Cass County
does not constitute a change in law justifying relief under Rule 60(b).
In contrast to Venetie III, the issue of whether Cass County
constitutes a change in law need not detain this court for long. That is
so because the County's taxation authority is no longer at issue.
Consequently, there is no need to consider the County's alternative
argument that Cass County resulted in a change of law. Likewise, there is
no need to address plaintiff's responding argument that Thompson IV
actually comports with Cass County, and thus there has not been a change
in the governing law.
Throughout this litigation, plaintiff Thompson has been claiming tax
exempt status, arguing that because her property is Indian country as
defined in 18 U.S.C. § 1151, it is not subject to the County's ad
valorem taxes. Plaintiff has made this argument on two separate bases.
Initially the primary focus of plaintiff's Indian country argument was
that her property lies within the boundaries of the St. Regis reservation
as created by the 1796 treaty. During oral argument of the parties' cross
motions for summary judgment though, "[a]t the court's prompting, . . .
plaintiff acknowledged that . . . alternative[ly] she is arguing . . .
that her property lies within Indian country because it is located within
a dependent Indian community — the second enumerated definition of
Indian country contained in section 1151." See Thompson IV, 987 F. Supp.
at 113 (footnote omitted).
The court rejected plaintiff Thompson's first argument because it was
that the St. Regis Reservation as originally established by the 1796
Treaty was diminished by the subsequent conveyance agreements, and as a
result [her] property no longer lies within the jurisdictional boundaries
of that Reservation." Id. at 124. Thus, the court concluded that
plaintiff's "property [wa]s not Indian country" under section 1151(a).
See id. Now, as fully discussed herein, relying upon Venetie III, the
court has also rejected plaintiff's second argument. Consequently, in the
absence of a showing that her property is Indian country, a fortiori it
is taxable by the County. Indeed, plaintiff Thompson conceded as much
earlier in this litigation:
If eventually the court finds that plaintiff
Thompson's property is not lndian country within the
meaning of section 1151, then plaintiff concedes that
ends the court's inquiry; there is no need for the
court to look any farther for an act of Congress
authorizing taxation of plaintiff's property.
Thompson IV, 987 F. Supp. at 113 (citation omitted) (emphasis added). In
light of the foregoing, the court need not delve into the issue of
whether Cass County constitutes a change in the controlling law,
warranting relief from judgment under Rule 60(b). Simply put, having now
found that plaintiff has not shown that her property is Indian country
within the meaning of section 1151, the issue of the County's taxing
authority is moot. Plaintiff's property is not Indian country,
therefore, it is taxable by the County.
III Rule 60(b)
Having found that Venetie III amounts to a change in the controlling
law, the court is left with the procedural issue of whether such change
is remediable under any of the three subsections of Rule 60(b) upon
which the County relies. The first basis for the County's present motion
is that this claimed change in law constitutes a "mistake" within the
meaning of Rule 60(b)(1). Therefore, to correct that mistake, the County
maintains that it should be relieved from the judgment previously entered
herein. Second, the County asserts that after Venetie III*fn5, it is "no
longer equitable that the judgment should have prospective
application[,]" and hence it is entitled to relief from judgment under
Rule 60(b)(5). Lastly, in the event that the court finds that relief
from judgment is not appropriate under either subsection one or
subsection five of Rule 60(b), the County invokes subsection six of that
Rule which allows for relief from operation of a final judgment for "any
other reason[.]" See Fed.R.Civ.P. 60(b)(6). More specifically, the
County is taking the position that Venetie III "altered"*fn6 the
governing legal standard[s] to be applied in deciding what constitutes a
dependent Indian community. The County views this change as an
"extraordinary circumstance justifying relief under Rule 60(b)[(6)]."
See Def. Reply at 5 (internal quotation marks and citation omitted).
Before examining the County's arguments under each of those three
separate subsections of Rule 60(b), the court will briefly look at the
interplay among those various subsections. Taking them in reverse order,
Rule 60(b)(6), the broad, catch-all provision, only applies if none of
the preceding five clauses of that Rule apply. See Warren v. Garvin,
219 F.3d 111, 114 (2d Cir.) (emphasis added), cert. denied, ___ U.S.
___, 121 S.Ct. 404, 148 L.Ed.2d 312 (2000) ("Rule 60(b)(6) only applies
if the reasons offered for relief from judgment are not covered under the
more specific provisions of Rule 60(b)(1)-(5).") (citing Liljeberg v.
Health Serv. Acquisition Corp., 486 U.S. 847, 863 & n. 11, 108 S.Ct.
2194, 2204 & n. 11, 100 L.Ed.2d
855 (1988)); see also PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 898
(2d Cir. 1983) (citations omitted) ("Rule 60(b)(6) is a broadly drafted
`umbrella provision,' which must be read in conjunction with the other
sections of that Rule, and is applicable only where the more specific
provisions do not apply."); cf Fustok v. Conticommodity Services, Inc.,
122 F.R.D. 151, 157 (S.D.N.Y. 1988) (citation omitted), aff'd on other
grounds, 873 F.2d 38 (2d Cir. 1989) ("[T]o the extent [that the third
party defendant] . . . already raised this argument as a basis for relief
under Rule 60(b)(4), he cannot pursue it under Rule 60(b)(6)."). In
other words, "clauses (1) — (5) and clause (6) of Rule 60(b) are
mutually exclusive." Lehman Brothers, Inc. v. Masselli, No. 93 Civ.
4478, 1998 WL 531831, at *5 (S.D.N.Y. Aug. 24, 1998). Based upon that
mutual exclusivity doctrine, the court must first consider whether either
Rule 60(b)(1) or Rule 60(b)(5) governs the County's motion herein. Only
if it determines that neither of those provisions applies to the present
motion, will the court go on to consider the potential applicability of
a. Rule 60(b)(1) — "Mistake"
Insofar as Rule 60(b)(1) is concerned, the County argues that the
change in controlling law occasioned by Venetie III law is a "mistake"
for purposes of that Rule, and hence it is entitled to relief from
judgment thereunder. Rule 60 does not independently define "mistake," but
that word "can easily be interpreted to encompass errors of law." See
Kevin Parker, Note, Relief from Final Judgment Under Rule 60(b)(1) Due
to Judicial Errors of Law, 83 Mich. L.Rev. 1571, 1572 (1985) ("Judicial
Errors"). "Errors of law," in turn, have been held to include
disregarding a change in controlling law. See id. at 1576 (citing, inter
alia, Schildhaus v. Moe, 335 F.2d 529 (2d Cir. 1964)). Courts are split
as to whether Rule 60(b)(1) is the proper procedural vehicle when a
party is claiming an intervening change in controlling law. The Second
Circuit has recognized that it is permissible for a party to invoke that
Rule to correct such a "judicial error;" but it has severely limited the
situations where Rule 60(b)(1) may be invoked based upon a purported
change in controlling decisional law.
In Tarkington v. United States Lines Co., 222 F.2d 358 (2d Cir. 1955),
a case upon which the County heavily relies, the Second Circuit "held
that a change in decisional law as the result of a reversal by a higher
court can be considered a `mistake' for which Rule 60(b)[(1)] provides a
remedy." Turley v. New York City Police Dept., 988 F. Supp. 675, 685
(S.D.N.Y. 1997), aff'd in part, rev'd in part on other grounds,
167 F.3d 757 (2d Cir. 1999). More specifically, the Second Circuit held
that when the Supreme Court rendered a decision, eleven days after entry
of judgment, which "conflict[ed] with the case on which the trial judge
relied in directing a verdict, th[at] . . . judge should have treated
plaintiff's motion as [one] under Fed. Rules Civ. Proc. rule
60(b), . . ., to correct a mistake of the court." See Tarkington,
222 F.2d at 359 (citation omitted). Explaining the rationale of
Tarkington, in a subsequent decision Judge Friendly wrote:
Under such circumstances there is indeed good sense in
permitting the trial court to correct its own error
and, if it refuses, in allowing a timely appeal from
the refusal; no good purpose is served by requiring
the parties to appeal to a higher court, often
requiring remand for further trial proceedings, when
the trial court is equally able to correct its
decision in the light of new authority on application
made within the time permitted for appeal, . . . .
Schildhaus, 335 F.2d at 531 (emphasis added).