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ONEIDA INDIAN NATION OF NEW YORK v. THE CITY OF SHERRILL

June 4, 2001

ONEIDA INDIAN NATION OF NEW YORK, PLAINTIFF, NEW YORK, DEFENDANT. THE STATE OF NEW YORK, AMICUS CURIAE, MADISON COUNTY, AMICUS CURIAE, ONEIDA COUNTY, AMICUS CURIAE, ONEIDA LTD., AMICUS CURIAE. THE CITY OF SHERRILL, NEW YORK, PLAINTIFF,
v.
ONEIDA INDIAN NATION OF NEW YORK, DEFENDANT. THE CITY OF SHERRILL, NEW YORK, PLAINTIFF, V. RAY HALBRITTER; KELLER GEORGE; CHUCK FOUGNIER; BRIAN PATTERSON; MARILYN JOHN; CLINT HILL; DALE ROOD; DICK LYNCH; KEN PHILLIPS; IVA RODGERS; BEULAH GREEN; RUTH BURR, DEFENDANTS. ONEIDA INDIAN NATION OF NEW YORK, PLAINTIFF, V. MADISON COUNTY, DEFENDANT.



The opinion of the court was delivered by: HURD,United States District Judge

     
TABLE OF CONTENTS Page
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. City of Sherrill Properties . . . . . . . . . . . . . . . . . 7 B. Madison County Properties . . . . . . . . . . . . . . . . . . 9 C. Historical Background . . . . . . . . . . . . . . . . . . . .10
III. CLAIMS, COUNTERCLAIMS, AND DEFENSES . . . . . . . . . . . . . . .16 A. Lead Case . . . . . . . . . . . . . . . . . . . . . . . . . .16 B. Eviction Case . . . . . . . . . . . . . . . . . . . . . . . 19 C. Member Case . . . . . . . . . . . . . . . . . . . . . . . . 19 D. Related Case . . . . . . . . . . . . . . . . . . . . . . . .21
IV. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 A. Summary Judgment Standard . . . . . . . . . . . . . . . . . .22 B. Indian Country . . . . . . . . . . . . . . . . . . . . . . . 24 C. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . 27 D. Application of Indian Country Finding . . . . . . . . . . . .49 1. Lead Case . . . . . . . . . . . . . . . . . . . . . . . .49 a. Sherrill's Motion for Summary Judgment or Alternative Injunctive Relief . . . . . . . . . . . 49 b. Nation's Cross-motion for Summary Judgment . . . 51 (1) Taxation Claim . . . . . . . . . . . . . . . . 51 (2) Due Process Claim . . . . . . . . . . . . . . 54 (3) Counterclaims . . . . . . . . . . . . . . . . . 57 c. Sherrill's Motion to Amend its Answer . . . . . . . 58 2. Eviction Case . . . . . . . . . . . . . . . . . . . . . 61 3. Member Case . . . . . . . . . . . . . . . . . . . . . . 61 a. Failure to State a Claim . . . . . . . . . . . . 62 b. Failure to Join an Indispensable Party . . . . . . . 65 4. Related Case . . . . . . . . . . . . . . . . . . . . . 68 E. Attorneys Fees . . . . . . . . . . . . . . . . . . . . . . 69
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

MEMORANDUM-DECISION and ORDER

"This litigation makes abundantly clear the necessity for congressional action."
So said the United States Supreme Court in 1985 in reference to the Oneida Indian Nation land claim. County of Oneida, New York v. Oneida Indian Nation of New York State, 470 U.S. 226, 253, 105 S.Ct. 1245, 1261 (1985) (emphasis added)[hereinafter "Oneida II"].
Rather than heed the advice of our highest Court, Congress has not enacted legislation to extinguish or resolve Indian title and land claims in New York State. It has turned a deaf ear to the Court and remained silent for over sixteen (16) years.
Further, heroic efforts over many years on the part of Senior District Judge Neal P. McCurn and Settlement Master Ronald J. Riccio to achieve a global settlement of the Oneida Indian Nation claims were met with resistance and ultimate failure. See Oneida Indian Nation v. County of Oneida, 199 F.R.D. 61, ¶¶ (N.D.N.Y. 2000). A political resolution by legislation or agreement has apparently been rejected by Federal, State, and Local governments and by the Oneida Indian Nation. See id. at 66.
Instead, the parties have increasingly turned to the courts to settle their disputes. These cases are examples. Unlike the executive and legislative branches of government, the judiciary cannot turn a deaf ear in the face of disputes such as these. Rather, a judge must put aside any personal opinions or ideas and apply the Constitution, Treaties, and laws of this great country. This is the result.
I. INTRODUCTION
The Oneida Indian Nation of New York ("the Nation" or "the Oneidas") filed a complaint on February 4, 2000, in the lead case, 00-CV-223, pursuant to 28 U.S.C. § 1331, seeking to prevent attempts by the City of Sherrill, New York ("Sherrill") to enforce property tax laws against properties owned by the Nation [hereinafter "Lead Case"]. Sherrill moved for summary judgment, or, in the alternative, for a preliminary injunction. The Nation opposed Sherrill's motion and cross-moved for summary judgment. Additionally, Sherrill has moved for permission to amend its answer to add certain affirmative defenses. The Nation opposes the motion to amend.
On February 22, 2000, the Nation removed to this court, pursuant to 28 U.S.C. § 1441, a petition for eviction filed by Sherrill in New York State Supreme Court, Oneida County, on February 15, 2000 [hereinafter "Eviction Case"]. In the Eviction Case, 00-CV-327, Sherrill sought to evict the Nation from the properties that are the subject of the Nation's February 4, 2000, complaint. Therefore, the Eviction Case was consolidated with the Lead Case on June 14, 2000.
Sherrill filed a complaint on July 17, 2000, pursuant to 28 U.S.C. § 1362, seeking declaratory relief and damages from individually named representatives of the Nation's Men's Council and Clan Mothers relating to the taxation of the properties at issue in the two aforementioned actions [hereinafter "Member Case"]. An amended complaint was filed as of right on August 7, 2000. The Member Case, 00-CV-1106, was thereafter consolidated with the Lead and Eviction Cases. The individually named Nation representatives, Ray Halbritter, Keller George, Chuck Fougnier, Brian Patterson, Marilyn John, Clint Hill, Dale Rood, Dick Lynch, Ken Phillips, Iva Rodgers, Beulah Green, and Ruth Burr (collectively "Nation representatives") moved to stay this action and to dismiss. Sherrill opposed the motion.
On November 13, 2000, Madison County and Oneida County ("the Counties"), New York State, and Oneida Ltd. filed, with permission, briefs as amici curiae in support of Sherrill's motion for summary judgment or alternatively for injunctive relief and in opposition to the Nation's motion for summary judgment. The Nation did not object to the filing of the amici curiae briefs, but did submit a responsive brief.
Also currently pending is a related case, 00-CV-506, filed by the Nation pursuant to 28 U.S.C. § 1331, against Madison County seeking to prevent enforcement of the County's property tax laws [hereinafter "Related Case"]. A motion to dismiss is pending in that action.
Oral argument was heard regarding all motions on March 9, 2001, in Utica, New York. Decision was reserved.
II. FACTS
A. City of Sherrill Properties
In 1997 and 1998 the Nation purchased, in open market transactions, fee simple title to certain parcels of land within the municipality of Sherrill. These parcels are designated by Sherrill as 322.014-1-23, 322.014-1-24, 322.014-1-25, 322.014-1-26, 322.015-2-1, 322.015-2-64, 322.015-2-65, 322.015-2-40.3, 322.015-2-45.1, 322.015-2-47. The Nation operates a gasoline filling station with convenience store and a textile manufacturing and distribution facility on the properties. Sherrill assessed property taxes against these parcels. The Nation did not pay the assessed taxes, asserting that the properties are contained within the Oneida Indian Reservation ("the Reservation") and therefore are nontaxable by state municipalities.
The Nation has a Silver Covenant Chain Grant program under which it makes ad valorem grants to schools and municipalities in which repossessed aboriginal lands are located. In order to participate in this program the municipality must remove such lands from its tax rolls pending resolution of the Nation's land claims. Sherrill and Madison County have not participated in the Nation's Silver Covenant Chain Grant program.
On August 7, 1997, Sherrill sent the Nation notices of tax delinquency. (Carmen Aff. sworn Sept. 11, 2000, Ex. 17 [hereinafter "First Carmen Aff."].) One notice set forth a total delinquency of $2,239.23, including overdue tax, penalties, and interest. A second and third notice each set forth a total delinquency of $22.59, including overdue tax, penalties, and interest. Thus, the total delinquency at that time was $2,284.71. None of the three notices identified a parcel or parcels. The notices each warned, "If you do not wish to have your name and property advertised for tax sale, payment of the unpaid taxes must be received by September 2, 1997." Id. In keeping with its assertion that the properties were nontaxable Reservation land, the Nation did not respond to the notices.
In September and October 1997 Sherrill advertised, in a local newspaper, that three Nation parcels would be sold for 1997 unpaid taxes on November 5, 1997. These parcels were identified as 322.014-1-26, 322.014-1-23, and 322.014-1-25. Sherrill did not serve the Nation with notice of the tax sale. The tax sale was held on that date and Sherrill purchased the properties. Pursuant to the Sherrill City Charter, a property owner may redeem a property sold at tax sale within two years of the sale. In November 1999 Sherrill published a notice in a local newspaper that the redemption period for the three parcels would expire on February 8, 2000. On January 10, 2000, Sherrill personally served notice on the Nation that the expiration period to redeem the properties was February 8, 2000. On February 9, 2000, Sherrill recorded deeds for the properties. On February 17, 2000, Sherrill initiated eviction proceedings in New York State Supreme Court, Oneida County.
Meanwhile, Sherrill assessed property taxes and initiated enforcement proceedings against several other Nation properties. Sherrill purchased four parcels, 322.015-2-1, 322.014-1-24, 322.015-2-65, and 322-015-2-64, at a tax sale on November 5, 1998. On March 6, 2000, Sherrill notified the Nation of the impending expiration of the redemption period of November 5, 2000, for these four parcels.
On November 10, 1999, Sherrill purchased an additional three parcels, 322-015-2-40.3, 322-015-2-45.1, 322-015-2-47 at tax sale. On March 6, 2000, Sherrill notified the Nation that the redemption period for these three parcels would expire on November 10, 2001.
Sherrill alleges a total tax liability for all of these parcels of approximately $15,000. The above-captioned actions followed.
B. Madison County Properties
In the 1990s the Nation acquired thirteen parcels of land located within Madison County. These parcels are identified as 28.-2-13.11, 28.-2-13.2, 36.5-1-20, 36.38-1-34, 36.6-1-4, 36.38-1-33, 36.38-1-32, 36.62-2-21, 91.-1-51, 36.6-1-1, 36.6-1-3, 36.-1-2, and 28.-2-13.12. The county assessed property taxes against these parcels. The Nation again asserted that these properties were within the Reservation and therefore were nontaxable. On December 1, 1999, the county initiated an in rem foreclosure action, for nonpayment of taxes, against these parcels in New York State Supreme Court, Madison County. The Nation alleges that Madison County never provided it with notice or a redemption period, as required by New York State law.
C. Historical Background
A brief discussion of the historical background of the Nation and its lands, as well as the federal policy toward the Indians lends perspective to the claims and the arguments. From before the Revolutionary War colonists' interaction with the Indians was in the spirit of cooperation and good faith. The Indians' right to the possession of their aboriginal lands was assumed, and termination of such title was restricted. Oneida II, 470 U.S. at 234, 105 S.Ct. at 1251. The Oneidas*fn1 claimed aboriginal lands of six million acres in Central New York, from Lake Ontario to the Adirondack foothills and from Pennsylvania north to the St. Lawrence River. Id. at 230, 105 S.Ct. at 1249. In 1784, shortly after the Revolutionary War ended, the first treaty between the United States and the Indians was executed, at Fort Stanwix, New York (present day Rome, New York). The United States, in recognition for the Oneidas' support during the war, guaranteed the Oneidas security "`in the possession of the lands on which they are settled.'" Id. at 231, 105 S.Ct. at 1249-50 (quoting the Treaty of Fort Stanwix, 7 Stat. 15 (Oct. 22, 1784)).
In 1790 Congress passed, in keeping with the policy of protecting the Indians and their lands, the first Indian Trade and Intercourse Act, ch. 33, 1 Stat. 137. Id. Commonly referred to as the Non-intercourse Act, now codified at 25 U.S.C. § 177, this legislation prohibited conveyance of Indian lands except by treaty with the federal government. Id. at 231, 105 S.Ct. at 1251. Later amendments continue the prohibition on alienation of Indian land without congressional action. See 25 U.S.C. § 177.
In 1788 New York State purchased most of the Nation's remaining land, reserving 300,000 acres to the Nation. Oneida II, 470 U.S. at 231, 105 S.Ct. at 1250. Other treaties, such as the Treaty of Harmar, 7 Stat. 33 (Jan. 9, 1789), and the Treaty of Canandaigua, 7 Stat. 44 (Nov. 11, 1794), reaffirmed the federal government's promise of security to the Oneidas in the possession of their lands. Oneida II, 470 U.S. at 231, 105 S.Ct. at 1250. The Sherrill parcels are among the lands reserved to the Nation in 1788 and confirmed as reservation land in the Treaty of Canandaigua.*fn2 (Thomas Decl. ¶ 10.) In 1795 New York State purchased the majority of the Oneidas' remaining 300,000 acres. Oneida II, 470 U.S. at 231, 105 S.Ct. at 1250. Thereafter, fee title to the land has passed in free market transactions.*fn3
Beginning in the early 1800's the federal policy toward the Indians shifted toward removing Indians from the east into the western territories. Felix S. Cohen, Handbook on Federal Indian Law 78-79 (1982 ed.)[hereinafter "Cohen"]. Treaties during this period provided for the relinquishment of Indian land in the east and set apart reservation land for the Indians in the west. See generally id. at 78-92. Movement of the eastern tribes to the west freed the eastern land for white settlements.

Between 1820 and 1822 some Oneidas and other New York Indians relocated to land purchased on their behalf from the Menominee and Winnebago nations in Wisconsin.*fn4 New York Indians, 170 U.S. at 12-14, 18 S.Ct. at 533. Some disagreement about the land ensued, and approximately 500,000 acres in Wisconsin were reserved for the use of the Oneidas and other New York Indians. Id. at 14, 18 S.Ct. at 533. Other Oneidas relocated to Ontario, Canada. Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527, 536 (N.D.N.Y. 1977) (Port, J.), aff'd, 719 F.2d 525 (2d Cir. 1983), aff'd in part & rev'd in part, 470 U.S. 226 (1985). The Oneida Nation thus splintered into three distinct bands, the New York Oneidas, the Wisconsin Oneidas, and the Thames Oneidas. See id.

In 1830 Congress passed the Indian Removal Act, ch. 148, 4 Stat. 411, authorizing the exchange of eastern land for land west of the Mississippi River. Cohen at 81. Among the removal treaties into which the Indians and the federal government entered was the Treaty of Buffalo Creek, 7 Stat. 550 (Jan. 15, 1838). New York Indians, 170 U.S. at 1, 18 S.Ct. at 531. Pursuant to the Treaty of Buffalo Creek the New York Indians, including Oneidas, ceded Wisconsin reservation lands in exchange for reservation lands west of the Mississippi River in what is now Kansas. Id. at 15, 18 S.Ct. at 533. The Treaty of Buffalo Creek further provided that New York Oneidas "hereby agree to remove to their new homes in the Indian territory, as soon as they can make satisfactory arrangements with the Governor of the State of New York for the purchase of their lands at Oneida." 7 Stat. § 550 Art. 13. However, the Indians did not remove to Kansas. New York Indians, 170 U.S. at 9-10, 18 S.Ct. at 532-33. Moreover, there is no evidence that "satisfactory arrangements with the Governor of the State of New York" were ever made for the purchase of the Oneidas' New York lands.
Toward the latter 1800's the federal policy shifted toward assimilating the Indians into the white culture. Solem v. Bartlett, 465 U.S. 463, 466, 104 S.Ct. 1161, 1164 (1984). This assimilation policy was carried out through allotment. See id. at 467, 104 S.Ct. at 1164; see generally Cohen at 128-132. The Dawes Act, ch. 119, 24 Stat. 388, and subsequent surplus land acts,*fn5 furthered this policy. See Cohen at 130-32. The surplus land acts provided for the allotment of set amounts of acreage to individual Indians, with the land held in severalty. Id. at 130-31. The allotments made to individual Indians were inalienable for twenty-five years, in keeping with the federal policy of protecting the Indians and their lands, after which it was thought that the Indians would assimilate into the culture of the white settlers who by then would surround the allotted land. Small amounts of land were reserved for tribal ownership to be used for common purposes, such as education. Unallotted, or surplus, lands were then opened for homesteading by white settlers. More than 90 million acres of tribal land were opened for settlement in this manner.
Allotment resulted in a checkerboard pattern of Indian and non-Indian ownership of reservation lands. Depending upon Congressional intent in opening the lands, some surplus lands have been found to continue to constitute reservation land, see, e.g., Solem, 465 U.S. at 481, 104 S.Ct. at 1171, and in some cases not, see, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 358, 118 S.Ct. 789, 805 (1998).
The termination policy was repudiated in 1958, and an era of Indian self-determination began. Id. at 180. This policy shift reflected the overall rise in concern for the civil rights of all ethnic minorities. Id. at 180-81. Beginning in 1973 Congress restored the sovereignty of several of the tribes previously terminated. Id. at 186-87. Programs were funded to improve Indian housing, education, economic development, health, and culture. Id. at 189-96. Moreover, a policy toward the development of reservations and return of aboriginal lands to the Indians arose. Id. at 196-200.
From the late 1700s until the middle 1960s the Oneidas attempted, in vain, to obtain redress for land claims and other grievances. Oneida Indian Nation of New York State v. County of Oneida, 719 F.2d 525, 529 (2d Cir. 1983) (noting that the Oneidas perceived their treatment by the State during this period as "improper, deceitful, and overreaching"). In 1970 the Nation brought a lawsuit seeking damages for the "illegal use and occupancy of a part of their aboriginal land" during 1968 and 1969. Id. at 532. The suit was originally dismissed at the trial court level for lack of jurisdiction. Id. at 530. On appeal, the United States Supreme Court found that federal question jurisdiction existed. Oneida Indian Nation v. County of Oneida, New York, 414 U.S. 661, 678, 94 S.Ct. 772, 782-83 (1974). After a finding of liability and the assessment of damages in the trial court,*fn6 the United States Supreme Court affirmed the Oneidas' federal common law right of action for unlawful possession of their lands. Oneida II, 470 U.S. at 233, 105 S.Ct. at 1251.
In 1974 the New York and Wisconsin Oneidas filed an additional land claim action. See Oneida Indian Nation, 199 F.R.D. at 66. At issue in that action is approximately 250,000 to 300,000 acres that the Oneidas claim was illegally alienated by some thirty agreements. Id. at ¶¶ & n. 3.

In the 1990s the Nation began reacquisition of lands within the Reservation. These reacquisitions have taken place in free market transactions, and the Nation received fee simple title to the properties.

III. CLAIMS, COUNTERCLAIMS, AND DEFENSES
A. Lead Case
The Nation first claims that the properties constitute Reservation land and therefore are Indian Country within the meaning of 18 U.S.C. § 1151. According to the Nation, under Article I, Section 8 of the United States Constitution authority over this property is exclusive to the federal government, precluding the state and its political subdivisions from imposing their taxes. Imposition of such taxes by the states and its political subdivisions also violates the Nation's tribal sovereign immunity. The Nation seeks redress from the aforesaid violations of the rights guaranteed by the Constitution and laws of the United States pursuant to 42 U.S.C. § 1983.
For its second claim the Nation avers that the process by which Sherrill purported to deprive the Nation of its properties and evict it from the properties failed to provide due notice. The Nation therefore seeks redress under 42 U.S.C. § 1983 for this alleged violation of its due process rights as secured by the Constitution and laws of the United States and the laws of New York.
The Nation seeks a declaration that Sherrill may not impose or attempt to collect property taxes based upon lands owned and possessed by the Nation within Sherrill, that the Nation and its lands are not subject to taxation by 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 and any attempt to do so are null and void. The Nation further seeks an injunction prohibiting Sherrill and any other person in active concert or participation with Sherrill from subjecting the Nation and its lands to property taxation, prohibiting it from interfering with the Nation's ownership and possession of its lands and from any effort to evict the Nation from such lands, and mandating that they void and rescind all notices, liens, sales, auctions, conveyances and other official documents or acts taken with respect to enforcement of the property tax laws as against the Nation and its lands. Finally, the Nation seeks attorneys' fees and costs pursuant to 42 U.S.C. § 1988.
Sherrill answered, denying the material allegations of the complaint. Sherrill also brings counterclaims. Sherrill avers that despite wrongful nonpayment of taxes, and in some cases foreclosure, the Nation remains in possession of the properties. Sherrill claims that the Nation has been and is being unjustly enriched by receipt of valuable municipal benefits including police and fire protection, garbage removal, road maintenance, and zoning enforcement and planning. First Sherrill seeks a declaration that it may properly assess property taxes against these properties and any other properties that may come into the Nation's possession in the future. Second, Sherrill seeks a judgment evicting the Nation from the foreclosed property. Third, Sherrill seeks damages for the unjust enrichment of the Nation for services provided by the municipality. Fourth, Sherrill requests a preliminary and permanent injunction prohibiting the Nation from purchasing additional properties, any part of which are located within Sherrill's boundaries. Finally, Sherrill seeks an order enjoining the Nation from building and/or expanding upon the existing building structure, or erecting new structures, on the foreclosed properties.
The Nation denies the material allegations of the counterclaims, including Sherrill's right to tax the properties. The Nation also asserts the affirmative defenses of failure to state a claim; sovereign immunity; violation of federal law; federal law preemption; the Supremacy Clause of the United States Constitution; due process violation; violation of the Non-intercourse Act; violation of the Equal Protection Clause of the United States Constitution; violation of the Due Process Clause of the United States Constitution; violation of the Takings Clause of the United States Constitution; violation of the Privileges and Immunities Clauses of the United States Constitution; prohibition of the relief requested by the Indian Commerce Clause, the Fifth Amendment, and the Fourteenth Amendment; failure of the Congress to authorize taxation or alienation of the lands in dispute; entitlement to set-off for funds paid to Oneida County pursuant to the Silver Covenant Chain Grant program; non-justiciability; and estoppel due to Sherrill's refusal to accept the Silver Covenant Chain Grant payments.
B. Eviction Case
Sherrill petitioned New York State Supreme Court, Oneida County, to order an eviction of the Nation from the properties designated as 322.014-1-23, 322.014-1-25, and 322.014-1-26. The petition asserts that Sherrill acquired the title to these properties through foreclosure and sale for nonpayment of taxes. The Nation removed the action to this court asserting that federal law completely preempts Sherrill's claim that it has title to and the right to possess this land and the eviction action is a compulsory counterclaim to the Lead Case. In answer the Nation denies that Sherrill has the right to assess taxes against the properties or that it holds valid title to the properties. The Nation asserts the affirmative defenses of failure to state a claim; sovereign immunity; federal law protection of reservation land; federal preemption of state and local law; the Supremacy Clause of the United States Constitution; insufficient process and service of process; violation of due process as set forth in the Lead Case; and the petition is duplicative of a compulsory counterclaim in the Lead Case.
C. Member Case
Sherrill avers that the Nation representatives dominate and control the Nation and its activities. Sherrill claims that the Nation representatives caused the Nation to refuse to pay the property taxes it assessed against the properties and to fail to collect state sales tax on goods sold on the properties, including goods sold to non-Indians. Sherrill further avers that the Nation's refusal to pay property taxes and collect sales taxes, at the direction of the Nation representatives, causes tax-paying citizens to suffer in the quality and availability of municipal services. Sherrill asserts that because the Nation may plead sovereign immunity as a bar to any lawsuit to collect taxes owed, the responsible Nation representatives may be sued. As a first cause of action Sherrill seeks a declaratory judgment that it may lawfully impose and attempt to collect property taxes from the Nation representatives on the properties currently owned by the Nation and on any properties acquired by the Nation in the future, and that its Charter applies to such properties. Sherrill further seeks a declaration that the Nation representatives are in violation of New York State law because the Nation refuses to collect state sales tax on the properties. Sherrill's second cause of action is for an order evicting the Nation representatives and all other Oneidas from the foreclosed property. Third, Sherrill seeks damages for what it alleges to be unjust enrichment of the Nation by provision of municipal services. Fourth, Sherrill requests a preliminary and permanent injunction prohibiting the Nation representatives from purchasing additional properties, any part of which are located within the boundaries of Sherrill, without first agreeing to pay property tax and agreeing to collect state sales tax on any additional properties. Sherrill's fifth cause of action is for a preliminary and permanent injunction prohibiting the Nation representatives from expanding and/or building upon the existing structure and/or erecting new structures on Nation-owned properties within Sherrill boundaries.
In lieu of an answer the Nation representatives move for a stay pending a decision on summary judgment in the Lead Case, which may moot this action, or to dismiss. The motion to dismiss is based upon failure to state a claim because the Nation representatives are not the owners of the properties; Sherrill lacks authority to enforce property taxes due to federal law; Sherrill lacks authority to enforce the state sales tax law and the property tax as set forth in the Sherrill City Charter under the property and sales tax laws of New York State; Sherrill has failed to name indispensable parties the Nation, New York State, and all other owners of land in Sherrill; and tribal sovereign immunity.
D. Related Case
The Nation brings this action to prevent Madison County from pursuing further efforts to enforce its ad valorem property tax laws with respect to Nation lands located within the County. The Nation avers that the properties at issue are located within and are part of the Reservation recognized in the 1794 Treaty of Canandaigua. The Nation further avers that the federal government has never modified the reservation status of these properties nor made them subject to taxation by a state or local government. One of the properties at issue was alienated by a 1795 Treaty between the Oneidas and New York State. The other properties were transferred by a Treaty with New York State in 1807. Since 1795 and 1807, respectively, the properties were out of the Nation's possession until their reacquisition in the 1990s. The Nation avers that neither transaction met the requirements of the Nonintercourse Act, and therefore were void ab initio.
The Nation's first claim is that federal law, including the 1794 Treaty of Canandaigua; Article I, Section 8 of the United States Constitution; the Nonintercourse Act; and federal common law, preempt any right of Madison County to impose taxes upon the properties and attempts by the county to collect such taxes violates federal law. This claim also avers that the county's attempts to collect such taxes violate the Nation's sovereign immunity, as well as the rights, privileges, and immunities secured to the Nation by the United States Constitution and laws. Secondly, the Nation avers that the county failed to give it the process it was due with regard to taxation and foreclosure upon Nation lands. The Nation therefore seeks a declaration that the county may not impose or seek to collect ad valorem property taxes from the Nation based upon the lands it owns and possesses; the Nation and its lands are not subject to such taxation; any purported taxation or foreclosure for tax delinquency is null and void; and the state court is without jurisdiction or power with respect to taxation of Nation lands. It also seeks an injunction prohibiting Madison County from subjecting the Nation and its lands to ad valorem property taxation; prohibiting the county from any interference with ownership and possession of its lands and from efforts to foreclose on the Nation's lands or to litigate in state court concerning taxation of its lands; and mandating that the county void and rescind all notices, liens, petitions, and other official documents or acts taken with respect to enforcement of such taxes as against the Nation and its lands. Finally, the Nation seeks attorneys' fees and costs pursuant to 42 U.S.C. § 1988.
Madison County filed its motion to dismiss in lieu of an answer. The county asserts that the Wisconsin and Thames Oneidas are indispensable parties, and as they cannot be joined, the action should be dismissed pursuant to Fed.R.Civ.P. 19. The Nation opposes. This motion is addressed in a separate Memorandum-Decision and Order filed this day.
IV. DISCUSSION
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991); Cayuga Indian Nation of New York v. Cuomo, 667 F. Supp. 938, 940 (N.D.N Y 1987). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
Disputes as to irrelevant or unnecessary facts are immaterial. Cayuga Indian Nation, 667 F. Supp. at 940 (quoting Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510). "`Any proof or evidentiary requirements imposed by the substantive law are not germane to [the materiality] inquiry, since materiality is only a criterion for categorizing factual disputes in their relation to the legal elements of the claim and not a criterion for evaluating the evidentiary underpinnings of those disputes.'" Id. (quoting Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510).
When the moving party has met its the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49, 106 S. Ct. at 2510; see Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356 (stating that there is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving ...

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