19-0032 Cayuga Indian Nation of New York v. Seneca County
In the United States Court of Appeals For the Second Circuit ______________
August Term, 2019
(Argued: January 7, 2020 Decided: October 23, 2020)
Docket No. 19-0032 ______________
CAYUGA INDIAN NATION OF NEW YORK,
Plaintiff–Counter-Defendant–Appellee,
–v.–
SENECA COUNTY, NEW YORK,
Defendant–Counter-Claimant–Appellant.
______________
B e f o r e:
KEARSE, CALABRESI, and CARNEY, Circuit Judges. ______________
Seneca County, New York, appeals from a December 11, 2018 decision of the United States District Court for the Western District of New York (Siragusa, J.), granting summary judgment in favor of the Cayuga Indian Nation of New York and permanently enjoining the County from foreclosing on the Cayuga Indian Nation’s real property for nonpayment of taxes. We agree with the District Court that tribal sovereign immunity from suit bars the County from pursuing tax enforcement actions under Article 11 of the New York Real Property Tax Law against the Cayuga Indian Nation. Contrary to the County’s view, its foreclosure proceedings are not permitted by the traditional common law exception to sovereign immunity that covers certain actions related to immovable property. We also reject the County’s reading of City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), as abrogating a tribe’s immunity from suit. Accordingly, we AFFIRM the judgment of the District Court.
AFFIRMED. ______________
DAVID W. DEBRUIN (Zachary C. Schauf, Caroline C. Cease, on the brief), Jenner & Block LLP, Washington, DC; Daniel J. French, Lee Alcott (on the brief), Barclay Damon, LLP, Syracuse, NY, for Plaintiff–Counter-Defendant– Appellee Cayuga Indian Nation of New York.
LOUIS P. DILORENZO (Brian Laudadio, Mary P. Moore, on the brief), Bond, Schoeneck & King, PLLC, New York & Rochester, NY, for Defendant–Counter-Claimant– Appellant Seneca County, New York. ______________
CARNEY, Circuit Judge:
This appeal poses the question whether a federally recognized Indian tribe’s
sovereign immunity from suit prevents a county in New York State from foreclosing on
tribal properties within the county’s borders for the nonpayment of real estate taxes.
In 2007, the Cayuga Indian Nation of New York (the “Cayuga Nation,” the
“Cayugas,” or the “Tribe”) purchased several parcels of land located in Seneca County,
New York (the “Properties”). After the Cayugas refused to pay real property taxes
levied by Seneca County (the “County”) on the Properties, the County in 2010 initiated
foreclosure proceedings (the “Foreclosure Actions”) under Article 11 of the New York
Real Property Tax Law (“Article 11”). In response, the Cayugas sued the County in
federal district court, asserting (among other claims) that the Foreclosure Actions were
2 barred by the doctrine of tribal sovereign immunity from suit. The United States District
Court for the Western District of New York (Siragusa, J.) agreed with the Cayuga
Nation, ruling in its favor on the parties’ cross-motions for summary judgment and
enjoining the County from proceeding with the Foreclosure Actions.
In this appeal, Seneca County argues in principal part that the Foreclosure
Actions may proceed under an “immovable-property exception” to tribal sovereign
immunity from suit. At common law, the County asserts, a sovereign (e.g., France)
would not be immune from legal actions that challenged the sovereign’s rights to real
(i.e., immovable) property located outside that sovereign’s own territory (e.g., in the
United States). The County urges us to recognize an analogous exception here to the
general rule of tribal sovereign immunity from suit, reasoning that the scope of the
immunity to which indigenous tribes are entitled cannot exceed that enjoyed at
common law by other sovereigns. On this basis, Seneca County contends, the
Foreclosure Actions are permitted.
We need not reckon with the merits of that position, however, because we
conclude that, even were we to recognize the County’s proposed exception to
immunity, the Foreclosure Actions lie outside its bounds. As we explain below, the
Foreclosure Actions do not seek to establish Seneca County’s rights in real estate such as
are the animating concern of the immovable-property exception. Rather, because in the
Foreclosure Actions the County seeks to seize the Properties as a remedy for the
nonpayment of taxes, the proceedings are best seen as the functional equivalent of an
action to execute on a money judgment. Viewed accordingly, they lie well within the
categories of suits from which sovereigns were traditionally immune under the
common law, and the existence or not of an immovable-property exception to tribal
sovereign immunity is of no moment.
3 We also reject the County’s interpretation of City of Sherrill v. Oneida Indian
Nation of New York, 544 U.S. 197 (2005) (“Sherrill”), as wholesale authorization for state
tax foreclosure actions against tribes. We have previously considered and discarded
that reading of Sherrill in two decisions: Oneida Indian Nation of New York v. Madison
County, 605 F.3d 149 (2d Cir. 2010) (“Oneida I”), vacated and remanded sub nom. Madison
County v. Oneida Indian Nation of New York, 562 U.S. 42 (2011), and Cayuga Indian Nation
of New York v. Seneca County, 761 F.3d 218 (2d Cir. 2014) (“Cayuga I”) (preliminary
injunction decision). While, as a technical matter, neither opinion’s interpretation of
Sherrill binds our ruling here, we agree with the reasoning consistently adopted in those
two decisions. We therefore finally put to rest the misguided claim that Sherrill
abrogated a tribe’s sovereign immunity from suit. Read properly, it merely narrowed
the scope of tribal immunity from certain forms of state regulation.
For these reasons, and as set forth more fully below, we AFFIRM the judgment of
the District Court.
BACKGROUND
The factual background relevant to this appeal is undisputed and was
established by the parties in their summary judgment submissions.
The Cayuga Nation is an Indian tribe recognized by the United States
government. In 2007, the Cayugas purchased the Properties, comprising five parcels of
land located within the boundaries of Seneca County, in upstate New York. 1 The Tribe
refused to pay the related real property taxes levied by the County, however, taking the
position that the Properties lay in “Indian country” within the meaning of federal
1During the state foreclosure proceedings, the five parcels that constitute the Properties were reconfigured as four separate parcels.
4 law. 2 App’x 13. 3 In due course, the Cayugas’ unpaid tax bill resulted in the imposition
of liens against the Properties by operation of Article 11 of the New York Real Property
Tax Law, the state statutory scheme governing the County’s collection of real property
taxes. See Oneida Indian Nation of N.Y. v. Madison Cty., 665 F.3d 408, 429-30 (2d Cir. 2011)
(“Oneida II”) (reviewing “the default tax-enforcement procedure established by Article
11”). Then, in October 2010, Seneca County moved under Article 11 to foreclose on the
liens and seize the underlying Properties in satisfaction of the Cayugas’ tax debt.
As noted above, the Cayugas proceeded to sue the County in federal district
court, seeking to enjoin the foreclosure proceedings. The Tribe maintained that New
York law exempts their lands from state and local taxation, and that the Foreclosure
Actions are also barred by tribal sovereign immunity and the federal Nonintercourse
Act, 25 U.S.C. § 177. 4
2 As we have explained elsewhere,
“Indian country” is . . . statutorily defined as “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights- of-way running through the same.”
Citizens Against Casino Gambling in Erie Cty. v. Chaudhuri, 802 F.3d 267, 280 (2d Cir. 2015) (quoting 18 U.S.C. § 1151).
3Unless otherwise noted, this Opinion omits all alterations, citations, footnotes, and internal quotation marks in quoted text.
4The Nonintercourse Act (the “Act”) generally “bars sales of tribal land without the acquiescence of the Federal Government.” Sherrill, 544 U.S. at 204. In connection with their claim under the Act, the Cayugas assert that the Properties lie within the historical boundaries of a 64,000-acre federal reservation that the Treaty of Canandaigua established in 1794 for their
5 In August 2012, the District Court entered a preliminary injunction halting the
Foreclosure Proceedings based entirely on the Tribe’s claim of sovereign immunity
from suit. In doing so, it relied heavily on our analysis in Oneida I, where we held that
“the long-standing doctrine of tribal sovereign immunity” precluded New York
counties from pursuing “[t]he remedy of foreclosure” against tribes that refuse to pay
property taxes. 605 F.3d at 151. The Supreme Court vacated our Oneida I decision when,
after the Court granted certiorari, the tribe expressly waived its sovereign immunity in
that proceeding. See Madison Cty. v. Oneida Indian Nation of New York, 562 U.S. at 42. 5
Nonetheless, the District Court found persuasive the reasoning we had adopted in the
vacated decision, concluding on grounds similar to those we cited there that the
Foreclosure Actions were very likely barred by the Tribe’s sovereign immunity from
suit, justifying an award of preliminary relief to the Tribe.
The County appealed, invoking our interlocutory jurisdiction. In July 2014, a
panel of this Circuit affirmed the District Court’s order. See Cayuga I, 761 F.3d at 221. In
a brief opinion, we declined to express a view as to the substantive import of the
tribe. Although in 1795 and 1807 they sold most of this land to the State of New York, the Cayugas allege in their complaint that the absence of Congressional approval for the sales rendered the transactions void and violative of the Nonintercourse Act, a position that, the Cayugas argue in a recent submission to the Court, is supported by the Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). For its part, Seneca County disputes that the Treaty of Canandaigua established a reservation for the Cayugas in the first place.
5 While review of Oneida I was pending in the Supreme Court, the Oneida Indian Nation “passed a tribal declaration and ordinance waiving its sovereign immunity to enforcement of real property taxation through foreclosure by state, county and local governments within and throughout the United States.” Madison Cty. v. Oneida Indian Nation of N.Y., 562 U.S. at 42. In light of this “new factual development,” the Supreme Court vacated our judgment in a brief order and remanded for further proceedings. Id. On remand, we found that the tribe’s express waiver compelled the conclusion that sovereign immunity no longer barred the counties’ tax enforcement actions; the appeal was then resolved on other grounds. See Oneida II, 665 F.3d at 414-15.
6 Supreme Court’s vacatur of Oneida I. See id. at 220. Instead, based on an independent
review of the relevant law, our per curiam opinion simply reaffirmed Oneida I’s
conclusion that federally recognized tribes are immune from local tax foreclosure
actions, see id. at 220-21, and therefore that the District Court did not abuse its discretion
by entering preliminary injunctive relief.
Following remand, the parties cross-moved for summary judgment, and on
December 11, 2018, the District Court ruled in favor of the Cayugas. Relying principally
on its earlier preliminary injunction ruling and our interlocutory decision in Cayuga I,
the District Court concluded that tribal sovereign immunity from suit prevented Seneca
County from foreclosing on the Properties. It therefore granted the declaratory and
permanent injunctive relief that the Cayugas requested and dismissed their remaining
claims as moot. The County then filed this timely appeal.
DISCUSSION
We review de novo a district court’s grant of summary judgment, “construing the
evidence in the light most favorable to the non-moving party.” CIT Bank N.A. v.
Schiffman, 948 F.3d 529, 532 (2d Cir. 2020). A district court may award summary
judgment “only if the court concludes that the case presents no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.”
Morgan v. Dzurenda, 956 F.3d 84, 88 (2d Cir. 2020).
Seneca County advances two main contentions on appeal. First, it asserts that an
“immovable-property exception” to sovereign immunity permits the Foreclosure
Actions. Generally speaking, this exception refers to a common law doctrine that
curtails sovereign immunity in legal actions contesting a sovereign’s rights or interests
in real property located within another sovereign’s territory. Second, the County urges
7 that the Supreme Court’s decision in Sherrill ended tribal sovereign immunity
altogether in tax foreclosure actions.
Below, we consider these arguments in turn. At the threshold, however, we
briefly address whether Cayuga I controls this appeal—a position pressed by the
Cayugas, who insist that it does because the County raises in this appeal the very
arguments that we considered and rejected in Cayuga I.
The Cayugas’ view is incorrect. We resolved Cayuga I on interlocutory appeal of
a preliminary injunction, a distinctive procedural posture. We long ago observed that,
“[o]rdinarily, findings of fact and conclusions of law made in a preliminary injunction
proceeding do not preclude reexamination of the merits at a subsequent trial.” Irish
Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). This is because a
preliminary injunction order is, by its very nature, “tentative.” Goodheart Clothing Co. v.
Laura Goodman Enters., Inc., 962 F.2d 268, 274 (2d Cir. 1992). To secure preliminary
injunctive relief, a plaintiff must show “a likelihood of success on the merits”—it need
not achieve “actual success.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12
(1987) (emphasis added). As we explained in Goodheart Clothing, “[i]t would . . . be
anomalous at least in most cases, and here, to regard the initial [preliminary injunction]
ruling as foreclosing the subsequent, more thorough consideration of the merits that the
preliminary injunction expressly envisions.” 962 F.2d at 274.
Two additional considerations reinforce the correctness of this conclusion. First,
in Cayuga I, we did not explicitly address Seneca County’s immovable-property
argument, and as a general practice, we avoid relying on “implicit holding[s].”
Villanueva v. United States, 893 F.3d 123, 131 (2d Cir. 2018) (citing Webster v. Fall, 266 U.S.
507, 511 (1925)). Second, we think that the Supreme Court’s decision in Upper Skagit
Indian Tribe v. Lundgren, 138 S. Ct. 1649 (2018) (“Upper Skagit”), weighs in favor of
treating the County’s invocation of the immovable-property exception as presenting an
8 as-yet unresolved question of law. In Upper Skagit, which the Supreme Court decided
after we issued our opinion in Cayuga I, neighboring landowners filed an adverse
possession action against the Upper Skagit Tribe, seeking to quiet title to a disputed
strip of land as to which both groups lay claim. Upper Skagit, 138 S. Ct. at 1652. The
Washington State Supreme Court initially ruled against the tribe, but the landowners
later conceded that the state court’s decision rested on an erroneous interpretation of
County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251
(1992). See Upper Skagit, 138 S. Ct. at 1652-53. The landowners nevertheless urged the
United States Supreme Court to affirm the state court’s judgment based on the
immovable-property exception to sovereign immunity. Id. at 1654.
The Supreme Court declined to address this proposed alternative ground for
affirmance, choosing instead to direct the state court to consider the immovable-
property exception (presumably, both its definition and application) in the first
instance. See id. At the same time, four of the Justices signaled their willingness to
embrace recognition of such an exception to tribal immunity from suit. In dissent,
Justices Thomas and Alito expressed the view that an immovable-property exception—
which they described as having been “hornbook law almost as long as there have been
hornbooks”—“plainly extends to tribal immunity, as it does to every other form of
sovereign immunity.” Id. at 1657 (Thomas, J., dissenting). For their part, Chief Justice
Roberts and Justice Kennedy identified concerns about applying tribal immunity from
suit to “property disputes of this sort,” writing that, “if it turns out that the [immovable-
property exception] does not extend to tribal assertions of rights in non-trust, non-
reservation property, the applicability of sovereign immunity in such circumstances
would . . . need to be addressed in a future case.” Id. at 1655-56 (Roberts, C.J.,
concurring).
9 In light of these considerations, we do not think that our decision in Cayuga I
compels us to affirm the District Court’s judgment. Rather, we do so for the reasons
stated below.
I. The Immovable-Property Exception
As “domestic dependent nations,” federally recognized tribes possess
“the common-law immunity from suit traditionally enjoyed by sovereign powers.”
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014). Courts must avoid “carving
out exceptions” to that immunity and should take care not to restrict tribes’ historic
immunity from suit. Id. at 789-90; cf. Lewis v. Clarke, 137 S. Ct. 1285, 1293 (2017)
(cautioning against “extend[ing] sovereign immunity for tribal employees beyond what
common-law sovereign immunity principles would recognize for either state or federal
employees”). The power to restrict the scope of a tribe’s immunity from suit lies,
instead, with Congress (which is empowered to authorize suits against tribes) and with
the tribes themselves (which may waive their immunity from suit, as occurred in
Oneida II, 665 F.3d at 414). See Bay Mills, 572 U.S. at 788.
Seneca County contends that the common law has long recognized an exception
to state and foreign sovereign immunity in certain cases involving real property. The
County urges us to find an analogous exception to tribal sovereign immunity, warning
that a contrary holding would “confer[] super-sovereign authority to the Cayuga
Nation.” Appellant’s Br. 14.
To resolve this appeal, however, we need not rule on the existence of such an
exception to tribal immunity. This is because, as discussed below, we conclude that the
Foreclosure Actions fall outside the purview of the common law version of the
immovable-property exception. Otherwise said: even if the County is correct that an
immovable-property exception limits tribal sovereign immunity from suit, that
10 exception provides no basis for disturbing the District Court’s judgment and allowing
the Foreclosure Actions to proceed.
American common law has long recognized an “exception to sovereign
immunity for actions to determine rights in immovable property.” Upper Skagit, 138 S.
Ct. at 1655 (Roberts, C.J., concurring); see also City of New York v. Permanent Mission of
India to the United Nations, 446 F.3d 365, 374 (2d Cir. 2006) (“Permanent Mission of India
I”) (“This principle . . . long predated the restrictive theory of sovereign immunity and
the [Foreign Sovereign Immunities Act].”). This rule—which has developed primarily
in the context of international law and practice—derives from two basic aspects of
sovereign authority. 6 The first is that “property ownership is not an inherently
sovereign function.” Permanent Mission of India to the United Nations v. City of New York,
551 U.S. 193, 199 (2007) (“Permanent Mission of India II”). Thus, when a state acquired
land outside of its own territory, courts traditionally treated that land as if it were
owned by a private individual. See Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116,
145 (1812) (“A prince, by acquiring private property in a foreign country, may possibly
be considered as subjecting that property to the territorial jurisdiction, he may be
considered as so far laying down the prince, and assuming the character of a private
individual.”).
6As noted in the text of this Opinion, questions regarding the applicability of the immovable- property exception have to date arisen most often in the context of suits against foreign sovereigns. See Upper Skagit, 138 S. Ct. at 1657-60 (Thomas, J., dissenting) (tying the emergence of the exception to international law and practice); see also Restatement (Fourth) of Foreign Relations Law of the United States § 456, reporters’ n.2 (Am. Law Inst. 2018) (collecting cases applying the exception to foreign sovereigns). The Supreme Court has recognized and applied an analogous exception, however, in suits against the states. See Upper Skagit, 138 S. Ct. at 1655 (Roberts, J., concurring); see also Georgia v. City of Chattanooga, 264 U.S. 472, 480-482 (1924).
11 The second is that each state has “a primeval interest in resolving disputes over
use or right to use of real property” located within its own territory. Asociacion de
Reclamantes v. United Mexican States, 735 F.2d 1517, 1521 (D.C. Cir. 1984) (Scalia, J.). Land
is “indissolubly connected with the territory of a [s]tate,” Upper Skagit, 138 S. Ct. at 1658
(Thomas, J., dissenting); the boundaries of a state’s territory, in turn, generally limit the
reach of the state’s sovereign powers, see The Apollon, 22 U.S. (9 Wheat.) 362, 370 (1824)
(“The laws of no nation can justly extend beyond its own territories, except so far as
regards its own citizens.”). A state therefore “cannot safely permit the title to its land to
be determined by a foreign power.” Asociacion de Reclamantes, 735 F.2d at 1521 (quoting
1 F. Wharton, Conflict of Laws § 278, at 636 (3d ed. 1905)).
In keeping with these principles, courts and other authorities have generally
understood the immovable-property exception as permitting only those lawsuits
against a sovereign that “contest[]” its rights or interests in real property. Restatement
(Second) of Foreign Relations Law of the United States § 68 cmt. d (Am. Law Inst.
1965). 7 Accordingly, the exception has not been thought to eliminate the immunity
defense as to “disputes that arise out of [a foreign sovereign’s] rights in real estate but
do not actually place [those rights] at issue.” Permanent Mission of India I, 446 F.3d at
369. 8 Nor has it been applied when the party who invokes the exception “makes no
7 Different articulations of the immovable-property exception have found favor over the years. Compare Restatement (Second) of Foreign Relations Law § 68(b) (the exception covers “action[s] to obtain possession of or establish a property interest in immovable property located in the territory of the State exercising jurisdiction”), with Permanent Mission of India I, 446 F.3d at 375 (the exception covers “disputes directly implicating property interests or rights to possession”). As discussed in the text of this Opinion, however, all of the various articulations of the exception center on actions asserting claims to rights or interests in real property that compete with those of the sovereign.
8In many of these cases, courts looked to the common law immovable-property exception to help them interpret the Foreign Sovereign Immunities Act of 1976 (the “FSIA”), 28 U.S.C. § 1602
12 claim to any interest” in a foreign sovereign’s real property and is “not seeking to
establish any rights” in that property. MacArthur Area Citizens Ass’n v. Republic of Peru,
809 F.2d 918, 921 (D.C. Cir. 1987). Instead, the immovable-property exception has
reached only those disputes that require the court to resolve competing claims to a right
or interest in real property. See Restatement (Second) of Foreign Relations Law § 68
cmt. d (describing the exception as covering “actions for the determination of
possession of, or an interest in, immovable or real property located in the territory of a
state exercising jurisdiction”).
Thus, for example, the exception plainly applies to, and allows, a state’s eminent-
domain proceedings against a foreign state’s property located in the state exercising
eminent domain. Permanent Mission of India II, 551 U.S. at 200. In such proceedings, the
parties assert conflicting rights to land. See Chattanooga, 264 U.S. at 480 (describing the
state’s right of eminent domain as “superior to property rights” and as “extend[ing] to
all property with the jurisdiction of the State”); see also Kohl v. United States, 91 U.S. 367,
371 (1875) (making a similar point). The exception has also been held to cover and
permit lawsuits seeking to establish “the validity of [a city’s] tax liens on property held
by [a foreign] sovereign.” Permanent Mission of India II, 551 U.S. at 195. In such cases, an
interest in property—i.e., the existence of a valid lien on real estate—is in dispute.
In contrast, courts have concluded that the immovable-property exception does
not extend to lawsuits against a foreign sovereign that: (1) arise out of a slip-and-fall
injury occurring on the foreign sovereign’s land, id. at 200; (2) seek damages and
injunctive relief on the theory that building renovations on the foreign sovereign’s
et seq., the statute that now “governs federal courts’ jurisdiction in lawsuits against foreign sovereigns.” Permanent Mission of India II, 551 U.S. at 195. This is because, in enacting the FSIA, Congress intended “to codify the pre-existing real property exception to sovereign immunity recognized by international practice.” Id. at 200; see also infra p. 16-17.
13 property depreciated the value of neighboring lands, MacArthur Area Citizens Ass’n, 809
F.2d at 919, 920-21; or (3) seek monetary compensation from the foreign sovereign in
connection with the expropriation of real property located in the United States,
Asociacion de Reclamantes, 735 F.2d at 1519, 1520-24. Those types of disputes may “arise
out of . . . rights in real estate,” but they all fall short of “actually plac[ing] [those rights]
at issue.” Permanent Mission of India I, 446 F.3d at 369.
Turning back to Seneca County, we conclude that the Foreclosure Actions fall
outside the ambit of the common law exception to sovereign immunity for matters
involving immovable property. Although a foreclosure action certainly involves real
property, the Cayuga Nation observes—and we are convinced—that these “tax
enforcement actions are—fundamentally—about money, not property.” Appellee’s Br.
32. In commencing the Foreclosure Actions under Article 11, Seneca County does not
seek a court determination that its tax liens against the Properties are valid. See Oneida
II, 665 F.3d at 430 (observing that, under Article 11, “unpaid taxes and other
assessments automatically become a lien against the property” after a certain period of
time has passed). Nor does the County challenge the legitimacy of the Cayugas’ existing
rights or interests in those Properties. Rather, Seneca County invokes its tax-collection
powers to seize the Properties under Article 11 as satisfaction for the Cayugas’ financial
debt for accrued, unpaid property taxes.
True, if Seneca County prevailed in the Foreclosure Actions, it would acquire
title to the Properties. See Kennedy v. Mossafa, 100 N.Y.2d 1, 8 (2003) (explaining that,
under Article 11, “the court enters a judgment directing that title pass in fee simple
absolute to the county”). That transfer of title, however, would simply serve as a
remedy—a way to satisfy the Tribe’s tax debt. Thus, contrary to the County’s urging, we
do not view the Foreclosure Actions as “actions to determine rights in immovable
property.” Upper Skagit, 138 S. Ct. at 1655 (Roberts, C.J., concurring) (emphasis added).
14 Rather, we see them as actions to pursue a remedy that is available to Seneca County by
virtue of its rights in immovable property. Accordingly, the Foreclosure Actions are not
covered by the immovable-property exception to sovereign immunity as it has been
recognized at common law.
We find additional support for our conclusion in the Restatement (Second) of
Foreign Relations Law of the United States (Am. Law Inst. 1965). Courts have regularly
consulted this edition of the Restatement when faced with ascertaining the scope of the
common law exception to sovereign immunity for immovable property. See, e.g.,
Permanent Mission of India II, 551 U.S. at 200; Permanent Mission of India I, 446 F.3d at 372.
In comment (d) of section 65, which generally addresses the “[i]mmunity of foreign
state[s] from jurisdiction to enforce tax laws,” the Restatement reports that (as of that
writing) “no case has been found in which the property of a foreign government has
been subject to foreclosure of a tax lien or a tax sale.” Restatement (Second) of Foreign
Relations Law § 65 cmt. d. This void, the Restatement explains, arises because although
“particular types of property of foreign governments may be carried on the tax rolls and
be made the subjects of levy and assessment,” the common law immunities enjoyed by
foreign sovereigns “prevent[] the actual enforcement against the property of a foreign
state of a tax claim of the territorial state.” Id.
Seneca County attempts to downplay the significance of comment (d)’s report by
suggesting that it “relates only to tax liability arising from ownership of movable
property by a foreign sovereign, not tax liability from ownership of immovable
property.” Appellant’s Br. 25. The Restatement does not expressly acknowledge any
such limitation, however, and we see no reason to infer one. In any event, the County
identifies no case before or since the Restatement issued in which a court in the United
15 States has applied the common law exception for immovable property to permit the
foreclosure of a foreign sovereign’s real property for nonpayment of taxes. 9
Seneca County’s failure to produce such a case is telling, but hardly surprising.
Until the middle of the 20th century, the United States afforded foreign sovereigns
“absolute immunity” from the execution of judgments against their properties located
in this country. Stephens v. Nat’l Distillers & Chem. Corp., 69 F.3d 1226, 1233 (2d Cir.
1995); see also Restatement (Fourth) of Foreign Relations Law of the United States § 464
reporters’ n.1 (Am. Law Inst. 2018) (“Prior to the enactment of the FSIA, the United
States gave absolute immunity to foreign sovereigns from the execution of
judgments.”). 10 Thus, “[e]ven if a court acquired jurisdiction and awarded judgment
9In support of its contrary position, Seneca County relies primarily on authorities that we find inapposite: (1) cases and scholarly works that restate the immovable-property exception in general terms; (2) cases in which rights to real property were actually in dispute, see, e.g., Chattanooga, 264 U.S. at 472 (eminent-domain proceeding), Permanent Mission of India II, 551 U.S. at 195 (lawsuit contesting validity of tax lien); (3) cases that concern doctrines other than the immovable-property exception to sovereign immunity, see, e.g., State v. City of Hudson, 231 Minn. 127, 128, 42 N.W.2d 546, 547 (1950) (applying state constitutional provision); see also, e.g., City Council of Augusta v. Timmerman, 233 F. 216, 218 (4th Cir. 1916) (applying the rule that “courts will not interfere by injunction with the collection of the public revenue, on the ground that a tax is illegal, unless it clearly appears that the complainant has no adequate legal remedy”); and (4) several academic articles that purportedly identify a handful of judicial decisions (all issued by foreign courts) authorizing the execution of judgment against a foreign sovereign’s real property, see, e.g., Charles Fairman, Some Disputed Applications of the Principle of State Immunity, 22 AM. J. INT’L L. 566, 567 (1928); Note, Execution of Judgments Against the Property of Foreign States, 44 HARV. L. REV. 963, 965 (1931). In our view, these sources fall far short of establishing that the immovable property exception under common law should be understood to permit tax foreclosure actions against a foreign sovereign’s property.
10As we noted above, when describing the common law exception to sovereign immunity for immovable property, courts have generally looked to the Restatement (Second) of Foreign Relations Law. See, e.g., Permanent Mission of India II, 551 U.S. at 200; Permanent Mission of India I, 446 F.3d at 372. This is because the Restatement (Second) predates the enactment of the FSIA, whereas more recent editions of the Restatement postdate the statute and so naturally focus on the FSIA’s articulation of a statutory immovable-property exception to foreign sovereign
16 against a foreign state,” the “[s]uccessful plaintiffs [would have] to rely on voluntary
payment by the foreign state” to obtain satisfaction of judgment because the foreign
sovereign’s property remains shielded from attachment, arrest, or execution. Rubin v.
Islamic Republic of Iran, 830 F.3d 470, 476-77 (7th Cir. 2016), aff’d, 138 S. Ct. 816 (2018); see
also Dexter & Carpenter v. Kunglig Jarnvagsstyrelsen, 43 F.2d 705, 708 (2d Cir. 1930) (“The
clear weight of authority in this country, as well as that of England and Continental
Europe, is against all seizures [of a foreign sovereign’s property], even though a valid
judgment has been entered.”).
Nothing in the longstanding case law, moreover, suggests that this common law
rule of “complete immunity from execution” recognized an exception for immovable
property. Conn. Bank of Commerce v. Republic of Congo, 309 F.3d 240, 251 (5th Cir. 2002);
see also Stephens, 69 F.3d at 1233 (observing that “[t]he only exception to this rule was
that attachment could sometimes be allowed in order to obtain jurisdiction over the
foreign entity”). In line with this view, we observe that Congress apparently did not
conceive that such a limitation already existed when, as part of the Foreign Sovereign
Immunities Act of 1976 (the “FSIA”), it created a series of statutory “[e]xceptions to the
immunity from attachment or execution”—including, most notably, an immovable-
property exception. 28 U.S.C. § 1610; see also id. § 1610(a)(4) (generally abrogating
immunity from execution where “the execution relates to a judgment establishing rights
in property . . . (B) which is immovable and situated in the United States”). As
evidenced by the FSIA House Report, Congress saw these statutory exceptions as
deviations from the common law rule of “absolut[e] immun[ity] from execution.” H.R.
Rep. 94-1487, 27 (1976), reprinted at 1976 U.S.C.C.A.N. 6604, 6626; see also Permanent
Mission of India I, 446 F.3d at 371 (describing the FSIA House Report as “reliable
immunity. In any event, we do not see anything in the Restatement (Third) or Restatement (Fourth) of Foreign Relations Law that casts doubt on the analysis offered here.
17 legislative history”). The Report explains, in particular, that “[s]ections 1610(a) and (b)”
of the FSIA—which set forth all of the FSIA’s exceptions to immunity from execution—
were “intended to modify this rule by partially lowering the barrier of immunity from
execution.” 1976 U.S.C.C.A.N. at 6626.
A foreclosure action under Article 11 differs in no meaningful way from an
execution of judgment against property. Just as execution or attachment enforces a
money judgment by seizing the debtor’s property, the Foreclosure Actions seek a court
order awarding Seneca County title to the Properties as satisfaction for the Cayugas’
acknowledged money debt. See Execution, BLACK’S LAW DICTIONARY (11th ed. 2019)
(defining “execution” as the “[j]udicial enforcement of a money judgment, usu[ally] by
seizing and selling the judgment debtor’s property”); Attachment, BLACK’S LAW
DICTIONARY (11th ed. 2019) (defining “attachment” as “[t]he seizing of a person’s
property to secure a judgment or to be sold in satisfaction of a judgment”). The
County’s tax enforcement proceedings therefore fall comfortably within the absolute
immunity from execution of judgment that foreign sovereigns traditionally enjoyed at
common law.
For all these reasons, we conclude that the common law exception to sovereign
immunity for lawsuits concerning immovable property does not cover the Foreclosure
Actions. Accordingly, we need not—and do not—decide whether an analogous
exception limits the scope of tribal sovereign immunity from suit.
II. Sherrill’s Import
Seneca County also urges us to overturn the District Court’s judgment based on
the Supreme Court’s decision in Sherrill. In the County’s view, the Sherrill Court held
that a tribe’s immunity from suit does not bar tax enforcement actions seeking to
foreclose on lands purchased by the tribe on the open market.
18 We have already rejected this reading of Sherrill on two separate occasions: first
in Oneida I, 605 F.3d at 156-59, and next in Cayuga I, 761 F.3d at 221. Although for
reasons we discussed above neither decision controls our analysis as a matter of
precedent, we agree with those panels’ analyses and, for the reasons set forth below,
echo their conclusion that Sherrill does not strip tribes of their immunity from suit in tax
foreclosure proceedings.
Sherrill concerned the taxation of parcels of land located in the City of Sherrill,
New York (“the City”), that once were part of the historic reservation of the Oneida
Indian Nation (the “Oneidas” or the “Oneida Nation”). See 544 U.S. at 202. The Oneidas
reportedly sold these parcels to “a non-Indian in 1807,” but later, in the 1990’s, the tribe
repurchased them on the open market. Id. at 211. When the Oneida Nation then refused
to pay property taxes on those lands to the City, the City initiated eviction proceedings
in state court. See id. In response, the Oneidas filed a federal lawsuit seeking “equitable
relief prohibiting, currently and in the future, the [City’s] imposition of property taxes”
on the lands. Id. at 211-12. The tribe pressed the position that its “acquisition of fee title
to discrete parcels of historic reservation land revived [its] . . . ancient sovereignty
piecemeal over each parcel.” Id. at 202.
The Supreme Court rejected the Oneidas’ claim of immunity from taxation. The
tribe’s newly purchased properties “had been subject to state and local taxation for
generations,” the Court observed. Id. at 214. Invoking the doctrines of “laches,
acquiescence, and impossibility,” id. at 221, it reasoned that the tribe should not be
permitted to “rekindl[e] embers of sovereignty that long ago grew cold,” id. at 214.
Thus, the Court concluded, the Oneidas could not “resist[] the payment of property
taxes to Sherrill” on the ground that the disputed properties were not subject to the
City’s “regulatory authority.” Id. at 202.
19 As we explained in Oneida I and later affirmed in Cayuga I, the Court’s holding in
Sherrill pertains to a tribe’s immunity from taxation—e.g., whether a state or local
authority has the power to impose real property taxes on tribal lands. See Oneida I, 605
F.3d at 159; Cayuga I, 761 F.3d at 221. It does not, however, speak to a tribe’s immunity
from suit—e.g., whether a state may use the courts against a tribe to collect taxes levied
against tribal lands. See Oneida I, 605 F.3d at 159; Cayuga I, 761 F.3d at 221. These two
types of immunities are “separate and independent,” we emphasized, each defined by a
“distinctive history” in the case law. Oneida I, 605 F.3d at 158. Tribal immunity from the
imposition of taxes, for example, is “closely tied to the question of whether the specific
parcel at issue is Indian reservation land.” Id. at 157 (quoting Cass Cty. v. Leech Lake Band
of Chippewa Indians, 524 U.S. 103, 110 (1998)). In contrast, “a tribe’s immunity from suit is
independent of its lands.” Id. (citing Kiowa Tribe of Okla. v. Mfg. Tech., Inc., 523 U.S. 751,
754 (1998)). We therefore concluded that Sherrill did not abrogate the Oneidas’
immunity from a suit to collect taxes by simply recognizing the City’s authority to
impose taxes on the tribe’s non-reservation properties. See id. at 159. Instead, we
observed “a difference between the right to demand compliance with state laws”
(which Sherrill addressed) and “the means available to enforce [those laws]” (which
Sherrill did not consider). Id. at 158 (quoting Kiowa, 523 U.S. at 755).
We see no reason today to depart from this understanding of Sherrill’s scope and
import. In support of its reading that Sherrill eliminated the Oneidas’ immunity from
suit in tax foreclosure actions, Seneca County points to a footnote in the Sherrill majority
opinion assailing the dissent’s “suggest[ion] that, compatibly with [the majority]
decision, the Tribe may assert tax immunity defensively in the eviction proceeding.”
Sherrill, 544 U.S. at 214 n.7. We agree with the Cayuga Nation, however, that the Court’s
reference to “tax immunity” in footnote 7 concerns the Oneidas’ immunity from
taxation, not its immunity from suit to enforce a tax liability. We doubt, moreover, that
20 the Supreme Court would choose to effect such a significant curtailment of tribal
immunity from suit using ambiguous language relegated to a footnote. Such an
approach would run directly counter to the Court’s admonition against “carving out
exceptions” to tribal immunity from suit and its longstanding practice of “defer[ring] to
Congress about whether to abrogate [that] immunity.” Bay Mills, 572 U.S. at 790.
Nor are we free to alter this legal analysis based on Seneca County’s dark
predictions that, if we affirm the District Court’s ruling, tribes will “buy large swaths of
property within the County,” and the County, in turn, will be left remediless if and
when those tribes refuse to pay property taxes. Appellant’s Br. 37. As we explained in
Oneida I, 605 F.3d at 159-60, the Supreme Court has already rejected a similar line of
argument in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of
Oklahoma, 498 U.S. 505, 514 (1991) (“Potawatomi”). There, the Court held that while
Oklahoma could tax certain cigarette sales made at the tribe’s convenience store, the
tribe’s immunity from suit precluded the State from suing to collect unpaid taxes.
Potawatomi, 498 U.S. at 512, 514. In reaching this conclusion, the Court acknowledged
that tribal immunity from suit “bar[red] the State from pursuing the most efficient
remedy.” Id. at 514. It resisted, however, Oklahoma’s claim that the state “lack[ed] any
adequate alternatives.” Id. The Court pointed out that the State could, among other
things, enter into an agreement with the tribe “to adopt a mutually satisfactory regime
for the collection of this sort of tax.” Id. And if that failed, the Court continued,
Oklahoma could “of course seek appropriate legislation from Congress.” Id.
Because those same alternatives are available to Seneca County with respect to
the real property taxes at issue here, we will not assume that the County’s right to tax
the Properties presumes the right to use Article 11 foreclosure proceedings to collect
those taxes. Cf. McGirt, 140 S. Ct. at 2481 (observing that Oklahoma’s “dire warnings”
about the consequences of recognizing certain lands within that State as reservation
21 lands are “not a license for us to disregard the law”). Instead, we adhere to the settled
principle that “it is fundamentally Congress’s job, not ours, to determine whether or
how to limit tribal immunity.” Bay Mills, 572 U.S. at 800. We therefore conclude—as we
did in Oneida I and Cayuga I—that “[t]he remedy of foreclosure” is unavailable to the
County by virtue of the Tribe’s immunity from suit. Oneida I, 605 F.3d at 151.
CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the District Court.