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December 26, 2000


The opinion of the court was delivered by: McCURN, Senior U.S. District Judge.


The present case is not unfamiliar to this court. The deceptively simple issue of whether defendant, County of Franklin,*fn1 may tax real property owned in fee simple by plaintiff Dana Leigh Thompson, who at least until June 27, 1997, was an enrolled member of the St. Regis Mohawk Indian Tribe ("the St. Regis") has engendered much litigation over the past eight years. During that time, the court has issued four separate decisions involving various aspects of this tax dispute. See Thompson v. County of Franklin, No. 92-CV-1258, 1992 WL 554369 (N.D.N.Y. Nov. 30, 1992), rev'd Thompson v. County of Franklin, 15 F.3d 245 (2d Cir. 1994), on remand to No. 92-CV-1258, 1996 WL 341988 (N.D.N.Y. June 18, 1996); Thompson v. County of Franklin, 987 F. Supp. 111 (N.D.N.Y. 1997) ("Thompson IV"); and Thompson v. County of Franklin, 180 F.R.D. 216 (N.D.N.Y. 1998) ("Thompson V"). The court assumes familiarity with these prior decisions. To place the present motion in context, however, and especially because in recent years the procedural history of this case has been anything but straightforward, it is necessary to recount some of that history before delving into the substantive issues which the County's present motion raises.


I. Thompson IV

In Thompson IV this court was faced with two, related issues: (1) whether plaintiff's real property is located within "Indian country" as that term is defined in 18 U.S.C. § 1151; and (2) whether nonetheless the County has the authority to tax that property. The court answered the first inquiry in the positive, and the second in the negative. To resolve the first issue, this court looked to United States v. Cook, 922 F.2d 1026 (2d Cir. 1991), wherein the Second Circuit found that "there was ample evidence from which [the district court] properly could conclude that the St. Regis tribe is a dependent community." Id. at 1031 (citing U.S. v. Sandoval, 231 U.S. 28, 47-48, 34 S.Ct. 1, 6-7, 58 L.Ed. 107 (1913)). Cook was the foundation for this court's dependent Indian community finding in Thompson IV, but at the same time the court expressed "some doubts as to whether Cook w[ould] retain its precedential value[.]" See Thompson IV, 987 F. Supp. at 120. Those doubts arose in part from Judge Lasker's "thoughtful dissent[,]" which "expose[d] some weaknesses in the majority's reasoning in Cook[.]" Id. at 119. This court was also somewhat hesitant to "adopt wholesale the majority's opinion" in Cook, being fully aware that at that time "[t]he multi-factor inquiry suggested by the Ninth Circuit in Venetie [II, 101 F.3d 1286 (9th Cir. 1996)] [wa]s . . . being challenged in the Supreme Court[,]" and potentially that decision could impact upon the meaning of "dependent Indian communities" as that term is employed in section 1151. See id. at 118 n. 27 (citation omitted). Nevertheless, because this court was "constrained to follow the law of this Circuit," in the form of the Cook majority, it was also "compelled to find that plaintiff[] [Thompson's] property [wa]s Indian country within the meaning of section 1151 [(b)], . . ., because it is located within what the Second Circuit has already determined is a dependent Indian community." See id. at 119 (footnote omitted).

Given the court's uncertainty as to the continuing vitality of Cook in light of Venetie III, and the parties' heavy emphasis upon the issue of reservation diminishment, the court went on to discuss the diminishment issue. The court held that because the St. Regis Reservation was diminished by conveyances subsequent to the 1796 Treaty which created that Reservation, plaintiff's property was no longer within the Reservation's jurisdictional boundaries; and hence it was not Indian country within the meaning of section 1151 (a). See id. at 125. However, based upon its finding that plaintiff Thompson's property is located within a dependent Indian community, this court ultimately held that her property "is not taxable by the County, especially in the absence of express congressional intent allowing such taxation." See id. at 127 (emphasis added). Accordingly, this court granted summary judgment in favor of plaintiff and conversely it denied the County's cross motion for summary judgment. On December 8, 1997, judgment was entered in accordance therewith. See Doe. # 70.

II Procedural

The County timely filed, in the Second Circuit, a notice of appeal from this court's judgment in Thompson IV. See Affidavit of Dwight A. Healy (Oct. 27, 1998) ("Healy Aff."), at 3, ¶ 6 and exh. 10 thereto. During the pendency of that appeal, there was some discussion among counsel as to a possible stay of same until the Supreme Court rendered its decisions in two then pending cases — Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) ("Venetie III"); and Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998). See Affidavit of Arlinda Locklear in Opposition to Defendants' Motion for Relief from Judgment (Nov. 25, 1998) ("Locklear Aff.") at 1, ¶ 4. The County advocated a stay of its appeal based upon its belief that those two cases might have some bearing on the present case. See Locklear Aff. at 1, ¶ 4.

Venetie III and Cass County involve completely different legal issues. Broadly stated, the issue in Venetie III was the meaning of the phrase "dependent Indian communities" as used in the statutory definition of "Indian country." See 18 U.S.C. § 1151 (West 2000). The Supreme Court in Cass County was faced with the separate and distinct issue of "whether state and local governments may tax reservation land that was made alienable by Congress and sold to non-Indians by the Federal Government, but was later repurchased by a tribe." See Cass County, 524 U.S. at 106, 118 S.Ct. at 1906. Before the parties could agree on the terms of the proposed stay, on February 25, 1998, the Supreme Court announced its decision in Venetie III. See Locklear Aff. at 1, ¶ 5.

Shortly thereafter, on March 6, 1998, the parties filed a Stipulation and Order with the Second Circuit wherein they agreed to withdraw that appeal "without prejudice to reinstatement of [same] within 30 days of issuance" of the Supreme Court's decision in Cass County. See Healy Aff., exh. 11 thereto at 1; see also Locklear Aff. at 1, ¶ 6. In the meantime, the County became aware that Mrs. Thompson had sent a letter to the St. Regis Tribe wherein, in the County's view, she disavowed her membership in the Tribe. After learning of that letter, on April 29, 1998, the County moved this court for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(2), authorizing such relief based upon "newly discovered evidence," i.e. the Thompson tribal resignation letter. In that motion, the County sought "to modify th[e] judgment to declare that plaintiff . . . is not immune from its ad valorem tax effective as of" her resignation date. See Thompson V, 180 F.R.D. at 218 (internal quotation marks and citation omitted). The sole basis for that motion was Mrs. Thompson's purported resignation from the St. Regis Tribe.

During the interim, while the County's Rule 60(b)(2) motion was pending, on June 8, 1998, the Supreme Court issued its decision in Cass County. Just three days later, the County filed its reply memorandum in connection with the original Rule 60(b) motion. See Locklear Aff. at 2, ¶ 8. Despite the fact that by then Cass County had been decided, the County did not mention that decision in its reply. See id. at 2, ¶ 8. Approximately a month later, on July 2, 1998, the County reinstated its appeal in the Second Circuit in accordance with the — terms of the earlier stipulation — i.e., within 30 days of the Supreme Court's issuance of the Cass County decision. See id. at 2, ¶ 9; and Healy Aff., exh. 12 thereto.

On July 30, 1998, agreeing with the County, in Thompson V this court held that plaintiff's resignation letter constituted "newly discovered evidence" which warranted granting the County's motion for relief from judgment. See Thompson V, 180 F.R.D. at 222. However, because the County's appeal was still pending at that time, the court found that it had no jurisdiction to entertain the Rule 60(b)(2) motion. See id. at 219-220. By the same token, though, the court did indicate "its willingness to grant th[at] . . . motion[,]" but concluded that it would not actually grant the same until the case was remanded from the Second Circuit. See id. at 226. On August 27, 1998, because plaintiff would not consent to a remand, see Healy Aff. at 4, ¶ 10, the County filed a remand motion in the Second Circuit, which it granted slightly more than a month later. See id., exh. 14 thereto. Upon remand, the County promptly sought court intervention, requesting a briefing schedule for the County's proposed second motion for reconsideration. See id., exh. 15 thereto (Letter of Dwight A. Healy to Court (10/2/98), at 1). The basis for that request was that from the County's viewpoint Venetie III and Cass County amounted to a "fundamental change in law since judgment was entered[.]" See id. at 3. Thus, the County further requested that the court defer modification of the judgment until the County made a second motion for reconsideration — on the basis of those two Supreme Court decisions. In other words, on remand the County asserts that not only should the court modify the judgment to reflect plaintiff's tax exempt status following her resignation from the Tribe, but the County maintains that "it is also . . . appropriate to reconsider whether Plaintiff's land was taxable while [she] was a member of the St. Regis . . . Tribe." See id.

Plaintiff strenuously objected to what she perceived as an attempt by the County to vastly broaden the scope of the remand. Attempting to factually distinguish Venetie III and Cass County, plaintiff Thompson disagreed with the County's assertion that those two decisions "constitute[] a significant change in the law governing the outcome of [this] case." Healy Aff., exh. 16 thereto (Letter from Locklear to Court of 10/5/98, at 1.) Rather than shifting the focus to Venetie III and Cass County, plaintiff took the position that any further proceedings in this court should be "limit[ed] . . . to the single issue for which defendants sought remand — i.e., the status of Mrs. Thompson vis a vis the St. Regis . . . Tribe." See id., exh. 16 thereto at 2. In this regard, plaintiff "propose[d] a limited evidentiary hearing" wherein, among other things, she intended to "show that she terminated her relationship with the governing body of the St. Regis . . . Tribe, as recognized by the United States, [but] not with the Tribe itself." Id. (emphasis added).

Upon consideration of the parties' respective positions as outlined above, the court allowed the County to bring the current Rule 60(b) motion based upon "a claimed intervening change in controlling law; that is, the Supreme Court's recent decisions in [Venetie III]; and [Cass County]. . . ." Healy Aff., exh. 17 thereto (emphasis added) (Letter from Court to Counsel of Record (10/7/98) at 1.) After receiving the court's permission, on October 28, 1998, the County filed this motion seeking relief from judgment based upon three separate provisions of Rule 60 (b). However, Rule 60(b)(2), the basis for Thompson IV, is not one of the bases for the current motion. Consequently there are in effect two separate Rule 60(b) motions currently pending before the court. The first is what the court will refer to as the "original" reconsideration motion, which was based upon "newly discovered evidence," i.e., plaintiff's alleged change in Tribal status. The second is the more recently filed motion for relief under Rule 60(b)(1), (5) and (6), due to the alleged intervening change in controlling law which supposedly resulted from the Supreme Court's decisions in Venetie III and Cass County.


The basis for the County's original Rule 60(b) motion, as well as the court's analysis of same are fully set forth in Thompson V, and there is no need to reiterate the same herein. This second Rule 60(b) motion is entirely different from the original, however. Now the County is arguing that a change in controlling law, which purportedly occurred as a result of the Supreme Court's rulings in Venetie III and Cass County, entitles it to relief from judgment under any one of three separate subsections of Fed.R.Civ.P. 60(b) — sections one, five and six-subsections which did not form the basis for the County's original motion.

Both from a substantive and from a procedural standpoint, plaintiff Thompson challenges this second reconsideration motion by the County. Substantively, she disagrees that either Venetie III, Cass County, or both mark a change in the controlling law for purposes of obtaining relief from judgment under Rule 60(b). Procedurally, plaintiff Thompson reasons that Venetie III and Cass County could have been included as additional or alternative bases for the County's original reconsideration motion; but, for whatever reason, it made a "strategic decision" not to proceed in this manner. See Pl. Memo. at 5. In that regard, plaintiff points out that Venetie III easily could have been incorporated in the County's original Rule 60(b) motion because that case was decided almost two full months before the filing of that motion. Yet, the County made no mention of Venetie III in its original Rule 60(b) motion. Furthermore, plaintiff observes that Cass County was decided three days before the filing date of the County's reply memorandum submitted in support of its original motion. By implication, then, plaintiff contends that the County also could have included Cass County as a further basis for its original motion. For all of these reasons, simply stated, plaintiff Thompson contends that the County is in the wrong court; it should be arguing the applicability of Cass County and Venetie III in the Second Circuit, not here, in this district court. As far as plaintiff Thompson is concerned, this motion "is simply an appeal masked in Rule 60(b) language." See Brown v. De Fillipis, No. 87 CIV. 3498, 1989 WL 161532, at *2 (S.D.N Y Dec. 22, 1989).

The County disagrees. Not only does it differ with plaintiff Thompson as to the impact of Venetie III and Cass County upon the present litigation, but, in sharp contrast to her, the County asserts that it is entirely proper for it to be arguing the applicability of those cases now, on this Rule 60(b) motion, rather than on appeal in the Second Circuit. Although not stated in precisely these terms, the County's rationale is that as long as this court must, pursuant to the Second Circuit's mandate, consider whether to modify the final judgment due to Mrs. Thompson's changed Tribal membership status, it also should consider whether this claimed change in law warrants modification of the previously entered judgment. Indeed, proceeding in this way best serves the interests of "judicial economy" according to the County. See Def. Memo. at 9.

I. Propriety of Second Rule 60(b) Motion

When the court allowed the County to file the present motion, it did not articulate its reasons for so doing. By allowing the filing of such a motion, however, the court impliedly adopted the view that the County's prior Rule 60(b) motion did not bar it from pursuing this second motion for similar relief. Because the issue of the propriety of this second, independent motion for relief from judgment continues to divide the parties, the court will briefly address the same.

For now the court will put aside the issue of whether any of the three subsections of Rule 60(b) upon which the County is relying is an appropriate procedural vehicle for the present motion. Instead, the court will focus on whether it is permissible for the County to bring this second Rule 60(b) motion in the first place. At first glance there is some appeal to plaintiff's contention that this court is strictiy limited by the terms of the Second Circuit's remand; that is, it may only grant the County relief from judgment if at all, based upon plaintiffs' change in Tribal membership status. Although the County is eager for that relief, it wants more.

In accordance with Thompson V and the Second Circuit's mandate on remand, granting the County's original motion would result in amendment of the judgment. Rather than being completely exempt from real property ad valorem taxation, the judgment would reflect that plaintiff is liable for such taxes from the date of her resignation letter to the St. Regis Tribe (June 27, 1997) onward. As this court has previously recognized, plaintiff's tax liability in this respect arises from the fact that "clearly" she exercised her right to sever her relationship with the St. Regis Tribe, and her related admission that if the court makes a finding of her resignation, as it did, then she would be "liable to the county for ad valorem taxes after that date." See Thompson V, 180 F.R.D. at 223-226. Amendment of the judgment to reflect the foregoing, however, still leaves open the issue of whether plaintiff Thompson also should be held liable for ad valorem taxes prior to her resignation date.

Upon remand, clearly this court has jurisdiction to grant the County's original Rule 60(b) motion. Cf U.S. v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (internal quotation marks and citation omitted) ("[a] district court . . . regain[s] jurisdiction u[pon] issuance of the mandate by the clerk of the court of appeals"). Indeed, such action is precisely what this court contemplated in Thompson V, and what the Second Circuit endorsed by granting the County's motion seeking "amendment of judgment pursuant to [Thompson V], stating intent of District Court to grant Defendants' motion for relief from judgment." See Healy Aff., exh. 14 thereto (emphasis added). Thus, if in accordance with Thompson V and the Second Circuit's mandate, this court were to grant the County's original motion, then as plaintiff herself concedes, she would be liable for ad valorem taxes after the date of her resignation date from the Tribe, i.e., June 27, 1997. See Thompson V, 180 F.R.D. at 225-226.

Plaintiff Thompson still, however, would not be liable for ad valorem taxes prior to her resignation date. She would be tax exempt for that time based upon this court's finding in Thompson IV that the St. Regis tribe is a dependent Indian community, and hence "Indian country." See Thompson IV, 987 F. Supp. at 125-127. If the court were to end its analysis at this point and not consider the County's second reconsideration motion, it would order amendment of the December 8, 1997 judgment to reflect the foregoing. That amended judgment would be entered and the time to appeal would then commence running anew from that date. See Minter v. Boone, No. 89 CIV. 3076, 1989 WL 74404, at *2 (S.D.N.Y. June 29, 1989) (citations omitted) ("The granting of a Rule 60(b) motion and the entering of a new judgment would generally renew a party's time to appeal from the new judgment.")

Given that the court has clearly signaled its intent to grant the County's original Rule 60(b)(2) motion, and modify the judgment to indicate "that plaintiff is liable to the County for ad valorem taxes after June 27, 1997[,]" see Thompson V, 180 F.R.D. at 226, and the fact that the Second Circuit remanded this case for precisely purpose, see Healy Aff., exh. 14 thereto, at a minimum the judgment in this case have to be amended in that respect. Consequently, it makes eminent good sense for the court also to consider at this time the County's second Rule 60 (b) motion based upon an alleged change of law.

The court is fully aware that Rule 60(b) is not intended as a substitute for a direct appeal. See Polanco v. United States, Nos. 99Civ.5739, 94CR.453, 2000 WL 1346726, at *1 (citation omitted) (S.D.N Y Sept. 19, 2000). By the same token however it makes little sense, especially in terms of judicial economy, for the court to modify the judgment in accordance with Thompson V, but disregard the possibility that the judgment should be further modified in light of Venetie III or Cass County or both. Cf HRI, Inc. v. Environmental Protection Agency, 198 F.3d 1224, 1248 (10th Cir. 2000) (because the district court had not ruled "on the application of the set-aside and superintendence tests required by Venetie," Tenth Circuit was "not in an appropriate position to resolve the dispute itself at th[a]t time[]"); State v. Reels, No. CR 96232040, 1998 WL 440832, at *3 n. 4 & *25-*26 (Conn. July 27, 1998) (because the Supreme Court had not yet issued Venetie III, court did not decide the dependent Indian community issue based upon that case, but in the "epilogue" of a written opinion rendered after Venetie, court, sua sponte, applied the enunciated test therein). Addressing all of the possible bases for which the County argues entitles it to Rule 60 (b) relief means that upon the anticipated appeal the Second Circuit will have before it all of the parties' respective arguments pertaining to Rule 60(b) relief and the court's rulings thereon. Perhaps this will eliminate one step in the appellate process.

II. Intervening Change in Controling Law?

As should be readily apparent by now, underlying each of the County's arguments herein for Rule 60(b) relief is the assumption that Venetie III and Cass County amount to an intervening change in controlling law. First the court will consider the validity of that assumption because if it disagrees with the County on this point, then obviously there is no need to address the host of procedural issues which the County's most recent reconsideration motion raises. On the other hand, if Venetie III or Cass County, or both, mark a change in the applicable law, then of course it will be necessary to ...

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