     05-6408-cv (L)
     Oneida Indian Nation v. Madison County


 1                    UNITED STATES COURT OF APPEALS

 2                           FOR THE SECOND CIRCUIT

 3                             August Term, 2007

 4    (Argued: November 6, 2007;    Originally Decided: April 27, 2010;

 5   Vacated and Remanded by the Supreme Court of the United States:

 6       January 10, 2011;    Final Submission on Remand: February 7,

 7                    2011; Decided: October 20, 2011)


 8    Docket Nos. 05-6408-cv (L); 06-5168-cv (CON); 06-5515-cv (CON)

 9                 -------------------------------------

10                   ONEIDA INDIAN NATION OF NEW YORK,

11                 Plaintiff-Counter-Defendant-Appellee,

12                                   - v -

13              MADISON COUNTY AND ONEIDA COUNTY, NEW YORK,

14               Defendants-Counter-Claimants-Appellants,

15        STOCKBRIDGE-MUNSEE COMMUNITY, BAND OF MOHICAN INDIANS,

16                    Putative Intervenor-Appellant.

17                 -------------------------------------

18   Before:   CABRANES, SACK, and HALL, Circuit Judges.

19             Consolidated appeals from judgments of the United

20   States District Court for the Northern District of New York



                                       1
 1   (David N. Hurd, Judge).   In separate actions, the Oneida Indian

 2   Nation of New York (OIN) brought suit against Madison County and

 3   Oneida County to enjoin them from assessing property tax on OIN-

 4   owned property, acquired on the open market in the 1990s, and

 5   from enforcing those taxes through tax sale or foreclosure.     On

 6   cross-motions for summary judgment in each action, the district

 7   court entered judgment in favor of the OIN on four separate

 8   grounds: (1) tribal sovereign immunity from suit; (2) the

 9   Nonintercourse Act, 25 U.S.C. § 177; (3) constitutional due

10   process; and (4) property-tax exemptions under New York state

11   law.   On appeal, we affirmed solely on the basis that the OIN's

12   tribal sovereign immunity from suit barred the Counties from

13   undertaking foreclosure proceedings against it.   See Oneida

14   Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir.

15   2010).   The U.S. Supreme Court granted the Counties' petition for

16   a writ of certiorari, after which the OIN declared that it had

17   waived its tribal sovereign immunity from suit.   The Supreme

18   Court then vacated our prior decision and remanded for further

19   proceedings.   See Madison County v. Oneida Indian Nation of N.Y.,

20   131 S. Ct. 704 (2011) (per curiam).   Upon the return of these

21   appeals to our Court, we conclude that the OIN has abandoned its

22   claims premised on tribal sovereign immunity from suit as well as

23   its claims based upon the Nonintercourse Act.   In proceeding to

                                      2
 1   review the remaining two grounds supporting the district court's

 2   judgments, we conclude that the district court erred in ruling

 3   that the Counties' redemption-notice procedures failed to comport

 4   with due process.   We further conclude that the district court

 5   should not exercise supplemental jurisdiction over the OIN's

 6   state-law claims.   Finally, we affirm as to several ancillary

 7   matters.

 8              Affirmed in part, reversed in part, and vacated in

 9   part, with instructions.

10   On original appeal:        DAVID M. SCHRAVER, David H. Tennant,
11                              John J. Field, Nixon Peabody LLP,
12                              Rochester, NY, for Defendants-Counter-
13                              Claimants-Appellants Madison County, New
14                              York, and Oneida County, New York.

15                              MICHAEL R. SMITH, David A. Reiser,
16                              Zuckerman Spaeder LLP, Washington, DC;
17                              Peter D. Carmen, Oneida Nation Legal
18                              Department, Verona, NY, for Plaintiff-
19                              Counter-Defendant-Appellee Oneida Indian
20                              Nation of New York.

21                              DON B. MILLER, Don B. Miller, P.C.,
22                              Boulder, CO, for Putative Intervenor-
23                              Appellant Stockbridge-Munsee Community,
24                              Band of Mohican Indians.

25                              ANDREW D. BING, Assistant Solicitor
26                              General (Barbara D. Underwood, Solicitor
27                              General; Daniel Smirlock, Deputy
28                              Solicitor General; and Peter H. Schiff,
29                              Senior Counsel, on the brief; Dwight A.
30                              Healy, White & Case LLP, New York, NY,
31                              of counsel) for Andrew M. Cuomo,
32                              Attorney General, for Amicus Curiae
33                              State of New York.

                                       3
 1                            Ronald J. Tenpas, Assistant Attorney
 2                            General, Samuel C. Alexander, Elizabeth
 3                            Ann Peterson, Kathryn E. Kovacs, U.S.
 4                            Department of Justice, Environment &
 5                            Natural Resources Division, Appellate
 6                            Section, Washington, DC; Thomas Blaser,
 7                            U.S. Department of the Interior,
 8                            Washington, DC, for Amicus Curiae United
 9                            States of America.

10   On remand from
11   U.S. Supreme Court:      David M. Schraver, Nixon Peabody LLP,
12                            Rochester, NY, for Defendants-Counter-
13                            Claimants-Appellants Madison County, New
14                            York, and Oneida County, New York.

15                            Seth P. Waxman, Wilmer Cutler Pickering
16                            Hale & Dorr LLP, Washington, DC, for
17                            Plaintiff-Counter-Defendant-Appellee
18                            Oneida Indian Nation of New York.

19                            Don B. Miller, Don B. Miller, P.C.,
20                            Boulder, CO, for Putative Intervenor-
21                            Appellant Stockbridge-Munsee Community,
22                            Band Of Mohican Indians.

23                            Andrew D. Bing, Deputy Solicitor General
24                            (Barbara D. Underwood, Solicitor
25                            General, on the brief), for Eric T.
26                            Schneiderman, Attorney General, for
27                            Amicus Curiae State of New York.

28   SACK, Circuit Judge:

29             These consolidated appeals, which have been returned to

30   us on remand from the United States Supreme Court, once again

31   call upon us to consider whether -- and, if so, on what grounds

32   -- the plaintiff-appellee, the Oneida Indian Nation of New York

33   (the "OIN"), is entitled to restrain the defendants-appellants,

34   Madison County and Oneida County (the "Counties"), from

35   foreclosing upon certain fee-title properties, acquired on the

                                     4
 1   open market by the OIN in the 1990s, for which the OIN has

 2   refused to pay property tax.   In our previous opinion, Oneida

 3   Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir.

 4   2010) ("Oneida I"), we concluded that the Counties were barred

 5   from foreclosing on these properties by virtue of the OIN's

 6   tribal sovereign immunity from suit.   We therefore affirmed the

 7   judgments of the United States District Court for the Northern

 8   District of New York (David N. Hurd, Judge), which had issued

 9   parallel injunctions barring the Counties from enforcing their

10   property-tax regimes against the OIN's properties through tax

11   sale or foreclosure.   See Oneida Indian Nation v. Oneida County,

12   432 F. Supp. 2d 285, 292 (N.D.N.Y. 2006) ("Oneida County I");

13   Oneida Indian Nation of N.Y. v. Madison County, 401 F. Supp. 2d

14   219, 231-32 (N.D.N.Y. 2005) ("Madison County I").   Although the

15   district court rested its grant of judgment in each case on four

16   independent grounds -- (1) the OIN's tribal sovereign immunity

17   from suit; (2) federal restrictions on the alienation of tribal

18   lands under the Nonintercourse Act, 25 U.S.C. § 177; (3)

19   inadequate notice to the OIN of the expiration of the Counties'

20   respective redemption periods, in violation of due process; and

21   (4) the exemption of "Indian reservation[s]" from property tax

22   under New York state law, see Oneida County I, 432 F. Supp. 2d at

23   289-90; Madison County I, 401 F. Supp. 2d at 227-31 -- our

24   decision on appeal affirmed the judgments solely on the basis of


                                      5
 1   tribal sovereign immunity from suit.   See Oneida I, 605 F.3d at

 2   160.

 3             Subsequent to our decision in Oneida I, the Counties

 4   successfully petitioned the United States Supreme Court for a

 5   writ of certiorari.   While the case was pending before the

 6   Supreme Court, however, the OIN notified the Court that it had

 7   voluntarily waived its tribal sovereign immunity from suit.     In

 8   light of that factual development, the Supreme Court vacated our

 9   judgment in Oneida I and remanded for further proceedings.      The

10   Court has instructed us, on remand, to "address, in the first

11   instance, whether to revisit [our] ruling on sovereign immunity

12   in light of this new factual development, and -- if necessary --

13   proceed to address other questions in the case consistent with

14   [our] sovereign immunity ruling."    Madison County v. Oneida

15   Indian Nation of N.Y., 131 S. Ct. 704, 704 (2011) (per curiam).

16             After reviewing the parties' submissions on remand from

17   the Supreme Court, we conclude that the district court's

18   judgments can no longer be sustained on the basis we relied upon

19   in Oneida I.   The OIN has affirmatively disclaimed any reliance

20   on the doctrine of tribal sovereign immunity from suit, and it

21   thereby abandoned its declaratory claims against the Counties to

22   the extent that they depended on such immunity.   We further

23   conclude that the OIN has abandoned its declaratory claims

24   premised upon the Nonintercourse Act, 25 U.S.C. § 177.


                                      6
 1                Those dispositions leave two grounds remaining in

 2   support of the district court's judgments: the OIN's due-process

 3   claims, based upon the Counties' alleged failure to provide

 4   adequate notice to the OIN of the expiration of the redemption

 5   periods applicable to each County's respective tax-enforcement

 6   proceedings, and the OIN's claims that its properties are exempt

 7   from taxation under New York Indian Law § 6 and New York Real

 8   Property Tax Law § 454.

 9                With respect to the due-process claims, we conclude

10   that the district court erred in ruling that the redemption

11   notices failed to comport with due process.    We reverse the

12   district court to the extent that it entered judgment in the

13   OIN's favor on its claims for violations of the Fourteenth

14   Amendment.

15                With respect to the OIN's claims arising under state

16   tax law, we conclude that concerns of comity, fairness, and

17   judicial economy warrant that we and the district court decline

18   to exercise supplemental jurisdiction over them.    We vacate the

19   district court's judgments to the extent that they rest upon a

20   determination that the OIN is entitled to property-tax exemptions

21   under state law, and we remand with instructions to the district

22   court to dismiss without prejudice the OIN's state-law claims.

23   Because no grounds remain in support of the district court's




                                        7
 1   award of permanent injunctive relief, we also vacate both

 2   injunctions in their entirety.

 3              Finally, we affirm, in whole or in part, the district

 4   court's determinations as to several ancillary matters:    First,

 5   we affirm the district court's subsidiary ruling in the Oneida

 6   County litigation (a ruling also arguably implicit in the Madison

 7   County litigation) that the OIN is not liable to pay penalties or

 8   interest for unpaid taxes accruing prior to March 29, 2005, on

 9   the ground that the Counties have forfeited their defense on this

10   issue.   Second, as in Oneida I, we affirm the district court's

11   decision to decline to abstain from this litigation.     Third, we

12   affirm the denial of a motion by the Stockbridge-Munsee

13   Community, Band of Mohican Indians seeking to intervene in this

14   litigation.   Lastly, we affirm the district court's dismissal of

15   the Counties' counterclaims seeking a declaration that the Oneida

16   Nation's ancient reservation was disestablished.

17                               BACKGROUND

18              The background facts of this protracted and

19   procedurally convoluted litigation are set forth in various

20   opinions of this and other Courts.   See, e.g., City of Sherrill

21   v. Oneida Indian Nation of N.Y., 544 U.S. 197, 203-12 (2005)

22   ("Sherrill III"); Oneida I, 605 F.3d at 152-56; Oneida Indian

23   Nation of N.Y. v. City of Sherrill, 337 F.3d 139, 146-52 (2d Cir.

24   2003) ("Sherrill II"), rev'd, Sherrill III, 544 U.S. 197; Oneida


                                      8
 1   Indian Nation of N.Y. v. City of Sherrill, 145 F. Supp. 2d 226,

 2   232-36 (N.D.N.Y. 2001) ("Sherrill I"), aff'd in part, vacated and

 3   remanded in part, Sherrill II, 337 F.3d 139, rev'd, Sherrill III,

 4   544 U.S. 197.1   We repeat them only insofar as we think necessary

 5   to an understanding of our resolution of these appeals.

 6              The Oneida Nation's Ancient Reservation

 7              The OIN is a federally recognized Indian tribe that is

 8   directly descended from the original Oneida Indian Nation

 9   ("Oneida Nation"), one of six Iroquois nations.2     Sherrill III,

10   544 U.S. at 203.   The Oneida Nation's homeland once encompassed

11   "some six million acres in what is now central New York [State]."


          1
             The short-form citations employed in this decision differ
     from those used in our previous decision of April 2010. For
     example, the 2003 Second Circuit decision that we previously
     referred to as "Oneida I" is now referred to as "Sherrill II."
          2
              We have previously cautioned:

                Despite our use of the "OIN" acronym, the
                Oneida Indian Nation of New York should not
                be confused with the original Oneida Indian
                Nation, which is not a federally recognized
                tribe and is not a party to these
                consolidated cases. . . . [T]he original
                Oneida Indian Nation became divided into
                three distinct bands, the New York Oneidas,
                the Wisconsin Oneidas, and the Canadian
                Oneidas, by the middle of the nineteenth
                century.

     Sherrill II, 337 F.3d at 144 n.1. Today, those three bands are
     known as the Oneida Indian Nation of New York (i.e., the OIN);
     the Oneida Tribe of Indians of Wisconsin; and the Oneida Nation
     of the Thames, respectively. See Oneida Indian Nation of N.Y. v.
     Madison County, 145 F. Supp. 2d 268, 269-70 (N.D.N.Y. 2001),
     rev'd, Sherrill II, 337 F.3d 139, rev'd, Sherrill III, 544 U.S.
     197.

                                      9
 1   Id.   In 1788, pursuant to the Treaty of Fort Schuyler between the

 2   Oneida Nation and the State of New York, the Oneida Nation ceded

 3   title to the vast majority of its lands and retained a

 4   reservation of approximately 300,000 acres.   Id.     In 1790,

 5   Congress passed the first Indian Trade and Intercourse Act, also

 6   known as the Nonintercourse Act, a law barring the alienation of

 7   tribal land absent the acquiescence of the federal government.3

 8   See Act of July 22, 1790, ch. 33, 1 Stat. 137.      In 1794, the

 9   United States and various Iroquois nations, including the Oneida

10   Nation, entered into the Treaty of Canandaigua.     "That treaty

11   both 'acknowledge[d]' the Oneida Reservation as established by

12   the Treaty of Fort Schuyler and guaranteed the Oneidas' 'free use

13   and enjoyment' of the reserved territory."    Sherrill III, 544

14   U.S. at 204-05 (brackets in original) (quoting Act of Nov. 11,

15   1794, art. II, 7 Stat. 44).

16              Despite the provisions of the Nonintercourse Act,

17   substantial portions of the Oneida Nation's remaining reservation

18   lands were thereafter conveyed to New York State and private

19   parties without federal permission.   See id. at 205-06; Sherrill

20   II, 337 F.3d at 147-48.   And by the early nineteenth century, the


           3
            The Nonintercourse Act remains substantially in force
     today. See Sherrill III, 544 U.S. at 204 & n.2. The statute,
     codified at 25 U.S.C. § 177(a), bars the "purchase, grant, lease,
     or other conveyance of lands . . . from any Indian nation or
     tribe of Indians . . . unless the same be made by treaty or
     convention entered into pursuant to the Constitution." See also
     25 C.F.R. § 152.22(b).

                                     10
 1   federal government itself, in apparent disregard of its

 2   commitments under the Treaty of Canandaigua, "pursued a policy

 3   designed to open reservation lands to white settlers and to

 4   remove tribes westward."   Sherrill III, 544 U.S. at 205.

 5             By 1838, the Oneida Nation had sold all but 5,000 acres

 6   of its reservation.   Id. at 206.     That year, the United States

 7   and various Indian tribes in New York, including the Oneida

 8   Nation, entered into the Treaty of Buffalo Creek, an agreement

 9   that contemplated the eventual removal of all remaining Native

10   Americans in New York to reservation lands in Kansas.4       See Act

11   of Jan. 15, 1838, 7 Stat. 550.   These efforts were not completed,

12   however, and federal efforts to relocate the New York Oneidas to

13   Kansas ended by 1860.   See Sherrill III, 544 U.S. at 207.

14   Nonetheless, by 1920, only thirty-two acres of the Oneida

15   Nation's ancient reservation remained in tribal possession.       See

16   id.

17             In the mid-twentienth century, descendants of the

18   Oneida Nation began seeking legal relief -- first through

19   proceedings before the Indian Claims Commission, and later

20   through litigation in federal court -- for the allegedly unlawful

21   dispossession of their ancestral lands.     Id. at 207-08.    In 1970,



           4
            As we will discuss further below, the parties vigorously
     dispute whether the Treaty of Buffalo Creek effected a legal
     disestablishment or diminishment of the Oneida Nation's ancient
     reservation.

                                      11
 1   the OIN and the Oneida Indian Tribe of Wisconsin instituted a

 2   "test case" against Oneida County and Madison County alleging

 3   that the Oneida Nation's cession of some 100,000 acres to the

 4   State of New York in 1795 had violated the federal Nonintercourse

 5   Act and therefore had not terminated the Oneidas' legal right to

 6   possess those lands.   Id. at 208.    The Oneidas subsequently

 7   received several favorable decisions from the United States

 8   Supreme Court.   See Oneida Indian Nation of N.Y. v. Oneida

 9   County, 414 U.S. 661 (1974) ("County of Oneida I") (upholding

10   federal jurisdiction over the Oneidas' complaint); Oneida County

11   v. Oneida Indian Nation of N.Y., 470 U.S. 226 (1985) ("County of

12   Oneida II") (ruling that the Oneidas had stated a claim for

13   damages under federal common law).    In 1974, a few months after

14   the Oneidas' success in the Supreme Court in County of Oneida I,

15   the OIN initiated a more comprehensive land claim against the

16   Counties.   See Oneida Indian Nation of N.Y. v. County of Oneida,

17   No. 5:74-CV-187 (N.D.N.Y. filed May 3, 1974) (the "Land Claim

18   Litigation").    Later, the United States intervened as a

19   plaintiff, and the State of New York was added as a defendant.

20   That litigation, which centers on the OIN's claims to more than

21   250,000 acres of ancestral lands that are not currently in the

22   OIN's possession, continues to the present day.    See Oneida

23   Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114, 119-21

24   (2d Cir. 2010) (surveying procedural history of the Land Claim


                                      12
 1   Litigation), cert. denied, ––- U.S. ----, 2011 WL 1933740, 2011

 2   U.S. LEXIS 7494 (U.S. Oct. 17, 2011).    However, the Land Claim

 3   Litigation is not directly at issue in the present appeals.     The

 4   appeals before us are only about lands that the OIN reacquired on

 5   the open market in the 1990s and now possesses.

 6             The OIN's Land Purchases and the
 7             City of Sherrill Litigation

 8             In the early 1990s, the OIN began to reacquire, through

 9   voluntary, free-market transactions, lands that had once been a

10   part of the Oneida Nation's reservation, but which later passed

11   into the possession of New York State or private, non-Indian

12   titleholders, who thereafter held title to them in fee simple.

13   See Sherrill II, 337 F.3d at 144, 156.    Before the OIN's recent

14   reacquisition of these fee-title lands -- which are located

15   within Madison County and Oneida County and in various cities

16   therein, including the City of Sherrill -- the lands had been

17   subject to property taxation.

18             After acquiring the lands in the 1990s, the OIN refused

19   to pay property tax upon them.   The OIN contended that these

20   properties fell within the Oneida Nation's reservation as

21   recognized by the Treaties of Fort Schuyler and Canandaigua and

22   that the OIN's re-purchase of those lands had resuscitated the

23   tribe's "sovereign dominion over the parcels."    Sherrill III, 544

24   U.S. at 213.   In asserting that the fee-title lands remained part

25   of its reservation, the OIN principally relied upon the Supreme

                                      13
 1   Court's 1985 decision in County of Oneida II, which held that the

 2   OIN was entitled to bring suit under federal common law for the

 3   wrongful alienation of its ancestral lands, see 470 U.S. at 253-

 4   54.

 5               One of the taxing authorities within whose jurisdiction

 6   some of the reacquired lands fell, the City of Sherrill,

 7   responded to the OIN's refusal to pay property taxes by selling

 8   three of the OIN's properties at a tax sale.    See Sherrill I, 145

 9   F. Supp. 2d at 232-33.    The City itself purchased the properties,

10   and it later began formal eviction proceedings.    Id.   In

11   response, in February 2000, the OIN brought suit against the City

12   of Sherrill in the United States District Court for the Northern

13   District of New York seeking a declaration that the lands in

14   question were "Indian country" as defined by federal law, see 18

15   U.S.C. § 1151, and were therefore exempt from state and municipal

16   taxation.   Id. at 237.   Two weeks later, the City of Sherrill

17   began a summary eviction proceeding in state court seeking to

18   evict the OIN from the three parcels.    The OIN removed the

19   eviction action to federal court.     See id. at 233, 238.    At about

20   the same time, the OIN also brought a declaratory-judgment suit

21   against Madison County, which had initiated in rem tax-

22   foreclosure proceedings on certain OIN-owned properties.      Id. at

23   239-40.   These three cases, along with a fourth lawsuit brought

24   by the City of Sherrill against individual OIN members, were


                                      14
 1   designated as related and assigned to Judge David N. Hurd.    See

 2   generally Sherrill II, 337 F.3d at 144-45 (identifying and

 3   describing these four cases); Sherrill I, 145 F. Supp. 2d at 236-

 4   40 (same).

 5                The district court, accepting the OIN's theory that the

 6   repurchased fee-title lands constituted "Indian country" within

 7   the meaning of 18 U.S.C. § 1151, granted summary judgment in the

 8   OIN's favor in all of the related lawsuits and enjoined both the

 9   City of Sherrill and Madison County from further attempts to

10   collect property tax.5    See Sherrill I, 145 F. Supp. 2d at 267-

11   68.   On appeal, we affirmed the district court's judgments in

12   each of the three lawsuits involving the City of Sherrill, see

13   Sherrill II, 337 F.3d at 155-69, but vacated the judgment in the

14   suit involving Madison County on procedural grounds, see id. at

15   146, 170-71.    The City of Sherrill successfully petitioned the

16   United States Supreme Court for a writ of certiorari, and the

17   OIN's lawsuit against Madison County was held in abeyance pending

18   the outcome of the City of Sherrill's Supreme Court appeal.

19                In 2005, in reviewing our decision in Sherrill II, the

20   Supreme Court focused its attention on a question that it had



           5
            In a separate opinion, the district court also denied
     Madison County's motion to dismiss pursuant to Fed. R. Civ. P. 19
     based upon the OIN's failure to join two parties: the Oneida
     Tribe of Indians of Wisconsin and the Oneida of the Thames. See
     Oneida Indian Nation of N.Y. v. Madison County, 145 F. Supp. 2d
     268 (N.D.N.Y. 2001). We affirmed that determination on appeal.
     See Sherrill II, 337 F.3d at 169-70.

                                       15
 1   reserved two decades before: "'whether equitable considerations

 2   should limit the relief available to the present day Oneida

 3   Indians.'"    Sherrill III, 544 U.S. at 209 (quoting County of

 4   Oneida II, 470 U.S. at 253 n.27).      Answering that question in the

 5   affirmative, the Supreme Court held that "standards of federal

 6   Indian law and federal equity practice preclude[d] the [OIN] from

 7   rekindling embers of sovereignty that long ago grew cold."      Id.

 8   at 214 (internal quotation marks omitted).       The Court explained:

 9                [T]he distance from 1805 to the present day,
10                the Oneidas' long delay in seeking equitable
11                relief against New York or its local units,
12                and developments in the city of Sherrill
13                spanning several generations, evoke the
14                doctrines of laches, acquiescence, and
15                impossibility, and render inequitable the
16                piecemeal shift in governance this suit seeks
17                unilaterally to initiate.

18   Id. at 221; see also id. at 215 n.9.      The Supreme Court therefore

19   reversed our judgment in Sherrill II, which had affirmed the

20   injunctions entered in the OIN's favor.     But the Court

21   acknowledged that it had not squarely addressed all of the

22   questions that the parties had briefed, see Sherrill III, 544

23   U.S. at 214 n.8, including whether the ancient Oneida Nation

24   reservation had been disestablished or diminished by the 1838

25   Treaty of Buffalo Creek, see id. at 215 n.9.

26                The Counties' Subsequent Attempts
27                to Foreclose on the OIN's Land
28
29                Following the Supreme Court's ruling in Sherrill III

30   that the OIN did not possess "sovereign authority" over the

                                       16
 1   reacquired properties, id., the OIN reached a settlement with the

 2   City of Sherrill.   See Madison County I, 401 F. Supp. 2d at 223

 3   n.2 (noting settlement).    The OIN was unable, however, to reach

 4   agreement with two other taxing authorities: Madison County and

 5   Oneida County.

 6             Madison County.    Beginning in 1999, Madison County

 7   commenced annual in rem tax-enforcement proceedings against

 8   parcels of land that had been repurchased by the OIN in the 1990s

 9   and on which the OIN had refused to pay taxes.6   From 2000

10   onward, however -- after the filing of the Madison County

11   litigation in the Northern District of New York -- Madison County

12   followed a practice of initiating such proceedings only to

13   withdraw them without prejudice in anticipation of a resolution

14   of the taxability question in federal court.   It continued to do

15   so until, in 2003, this Court separated the ongoing Madison

16   County litigation from the City of Sherrill litigation and

17   remanded the Madison County suit to the district court for

18   further proceedings.   See Sherrill II, 337 F.3d at 171.

19             On November 14, 2003, Madison County began a tax-

20   enforcement process with respect to some ninety-eight parcels of

21   OIN-owned property by including those parcels on a list of



          6
            Madison County's tax-enforcement procedures, which are
     governed by Article 11 of the New York Real Property Tax Law, are
     described in further detail in Part III.B.1 of the Discussion
     section, below.

                                      17
 1   delinquent taxes filed with the county clerk.      This time,

 2   however, Madison County did not abandon the tax-enforcement

 3   process as to the OIN-owned parcels.      Instead, in December 2004,

 4   the County proceeded to execute a petition of foreclosure in New

 5   York state court.   Notice of this filing was sent to the OIN by

 6   certified mail on December 8, 2004, and published in local

 7   newspapers in December 2004 and January 2005.      The notice

 8   established March 31, 2005, as the last day that the properties

 9   could be redeemed from foreclosure by full payment of back taxes,

10   plus penalties and interest.   Id.      Just two days before the final

11   day for redemption, on March 29, 2005, the Supreme Court decided

12   Sherrill III.   See 544 U.S. 197.      In light of this development,

13   Madison County subsequently extended the redemption period for

14   the OIN's properties until June 3, 2005, and later to July 14,

15   2005.

16             In the meantime, on March 30, 2005, the OIN filed a

17   verified answer in the state-court foreclosure action.      On April

18   28, 2005, Madison County moved for summary judgment in the state-

19   court action.   Madison County maintains that as of May 15, 2005,

20   the OIN owed it approximately $3 million in unpaid property

21   taxes, penalties, and interest.

22             Oneida County.   Similarly, in the years prior to 2005,

23   Oneida County appears to have followed a practice of beginning,

24   but not completing, its tax-enforcement procedures with respect


                                       18
 1   to OIN-owned lands.7   However, after the Supreme Court's decision

 2   in Sherrill III in March 2005, Oneida County began to implement

 3   fully its tax-enforcement procedures against OIN-owned

 4   properties.   On June 3, 2005, Oneida County's Deputy Commissioner

 5   of Finance hand-delivered notices to the OIN with regard to

 6   fifty-nine parcels that had been sold at tax sale three years

 7   prior.   Oneida County I, 432 F. Supp. 2d at 288.   These notices

 8   specified that the OIN would have until July 29, 2005, to remit

 9   all unpaid taxes, penalties, and interest or else forever lose

10   its legal interest in the properties.   Id.   Oneida County

11   subsequently delivered additional final-redemption notices to the

12   OIN for another sixty-two parcels on September 26, 2005, and an

13   additional sixty-six parcels on October 27, 2005.   Id.   Oneida

14   County maintains that, as of November 30, 2005, the OIN owed it

15   approximately $5 million in unpaid property taxes, penalties, and

16   interest.

17               The Post-Sherrill III District Court Proceedings



          7
            Unlike Madison County, Oneida County does not follow
     Article 11 of the New York Real Property Tax Law; instead, it
     follows its own tax-enforcement procedures, which provide for a
     tax sale followed by transfer of title. See Oneida County I, 432
     F. Supp. 2d at 287. These procedures are described in Part
     III.B.2 of the Discussion section, below.

          Despite the fact that Oneida County employs a tax-sale
     procedure rather than simple foreclosure, we occasionally use the
     term "foreclosure" generically in this opinion to refer to the
     tax-enforcement procedures of both Madison County and Oneida
     County.

                                      19
 1              In an effort to prevent each of the Counties from

 2   completing its respective tax-enforcement procedures, the OIN

 3   sought declaratory and injunctive relief in federal court.     As to

 4   Madison County, against which litigation had been pending since

 5   March 2000, the OIN moved in June 2005 for a preliminary

 6   injunction to restrain all further efforts to foreclose upon OIN-

 7   owned property.   The district court granted that motion and

 8   issued such an injunction on July 1, 2005.    See Oneida Indian

 9   Nation of N.Y. v. Madison County, 376 F. Supp. 2d 280, 283

10   (N.D.N.Y. 2005) (awarding injunction).

11              As to Oneida County, the OIN filed suit against it for

12   the first time in July 2005.   The OIN obtained a temporary

13   restraining order against Oneida County on October 28, 2005,

14   barring it from further tax-enforcement efforts with respect to

15   the OIN's property.   This restraining order was then effectively

16   converted into a preliminary injunction by stipulation of the

17   parties.   See Oneida County I, 432 F. Supp. 2d at 286 (describing

18   procedural history with respect to preliminary relief).

19              The parties then brought cross-motions for summary

20   judgment in each lawsuit.   The district court granted the OIN's

21   respective motions and entered judgment in its favor in each

22   case.   See Oneida County I, 432 F. Supp. 2d at 292; Madison

23   County I, 401 F. Supp. 2d at 232-33.     In concluding that the

24   Counties could not enforce their property taxes through tax sale


                                     20
 1   or foreclosure, the district court rested its determination on

 2   four independent grounds: (1) the OIN's tribal sovereign immunity

 3   from suit, see Oneida County I, 432 F. Supp. 2d at 289; Madison

 4   County I, 401 F. Supp. 2d at 228-29; (2) the Nonintercourse Act's

 5   restrictions on the alienability of tribal land, see Oneida

 6   County I, 432 F. Supp. 2d at 289; Madison County I, 401 F. Supp.

 7   2d at 227-28; (3) the Counties' failures to give the OIN adequate

 8   notice of the expiration of the respective redemption periods in

 9   violation of principles of due process, see Oneida County I, 432

10   F. Supp. 2d at 289-90; Madison County I, 401 F. Supp. 2d at 230;

11   and (4) the exemption of OIN-owned properties from property

12   taxation as a matter of state law, see Oneida County I, 432 F.

13   Supp. 2d at 290; Madison County I, 401 F. Supp. 2d at 231.    The

14   district court also concluded that the OIN could not be compelled

15   to pay penalties or interest on any unpaid taxes by virtue of the

16   OIN's tribal sovereign immunity from suit.   See Oneida Indian

17   Nation of N.Y. v. Oneida County, No. 6:05-CV-945, slip op. at 2-3

18   (N.D.N.Y. Nov. 2, 2006), ECF No. 41 ("Oneida County II"); Madison

19   County I, 401 F. Supp. 2d at 230.   Finally, the district court

20   issued declarations in each case that the Oneida Nation had not

21   been disestablished by the 1838 Treaty of Buffalo Creek.   See

22   Oneida County I, 432 F. Supp. 2d at 292; Madison County I, 401 F.

23   Supp. 2d at 231, 233.




                                    21
 1             At a different point in each litigation, the district

 2   court also denied motions by the Stockbridge-Munsee Community,

 3   Band of Mohican Indians ("Stockbridge") to intervene as of right

 4   pursuant to Fed. R. Civ. P. 24(a), based upon Stockbridge's claim

 5   to a six-square-mile reservation encompassing some of the parcels

 6   in dispute.   See Oneida Indian Nation of N.Y. v. Madison County,

 7   235 F.R.D. 559, 562-63 (N.D.N.Y. 2006) ("Madison County II");

 8   Oneida County I, 432 F. Supp. 2d at 291-92.8

 9             The Proceedings on Appeal to this Court: Oneida I

10             Following a round of post-judgment motion practice in

11   each lawsuit, each County appealed from the grant of summary

12   judgment and entry of injunctive relief against it.   Stockbridge


          8
            More specifically, Stockbridge asserts that fifty-two of
     the parcels in dispute -- two in Oneida County, and fifty in
     Madison County -- are part of its own undiminished reservation as
     recognized by the 1794 Treaty of Canandaigua. Before the
     district court, Stockbridge argued that the existence of its land
     claim made it an indispensable party to these proceedings, and
     that its tribal sovereign immunity from suit would, in turn,
     require dismissal of the lawsuit at least with respect to those
     parcels over which Stockbridge lays claim. The district court
     denied Stockbridge's motion to intervene on the basis that
     Stockbridge had failed to demonstrate a sufficient interest in
     the instant litigation. See Oneida County I, 432 F. Supp. 2d at
     291-92; Madison County II, 235 F.R.D. at 562-63.

          Stockbridge is seeking the adjudication of its land claim in
     a separate lawsuit pending in the Northern District of New York,
     litigation within which the OIN has appeared as a defendant-
     intervenor. See Amended Complaint, Stockbridge-Munsee Cmty. v.
     New York, No. 3:86-CV-1140 (N.D.N.Y. Aug. 5, 2004), ECF No. 228.
     That lawsuit is currently stayed pending a decision by the
     Supreme Court whether to grant a writ of certiorari to review our
     Court's decision in Oneida Indian Nation of N.Y. v. County of
     Oneida, 617 F.3d 114 (2d Cir. 2010).

                                     22
 1   also appealed, asserting error in the district court's denial of

 2   its motion to intervene in the Oneida County litigation.    We

 3   consolidated the three appeals.    The State of New York appeared

 4   as amicus curiae in support of the Counties, while the United

 5   States, upon order of this Court, also appeared as amicus

 6   supporting the OIN.

 7             After a brief stay and several rounds of supplementary

 8   submissions,9 we affirmed the district court's judgments in the

 9   OIN's favor, but solely on the basis that tax sale and

10   foreclosure of the OIN's properties were barred by the doctrine


          9
            Both the stay and the supplementary submissions resulted
     from ongoing factual developments. These developments, which are
     described in our previous opinion, see Oneida I, 605 F.3d at 155-
     56, involved efforts by the OIN to have the lands at issue
     (amounting to roughly 17,000 acres) taken into trust by the
     federal government as authorized by 25 U.S.C. § 465, thereby
     exempting them from state or local taxation. As required by
     federal trust regulations, see 25 C.F.R. pt. 151, the OIN posted
     letters of credit securing the payment of all taxes, penalties,
     and interest determined by the courts to be lawfully due. Three
     years after the OIN filed its initial request, by Record of
     Decision issued on May 20, 2008, the Department of the Interior
     determined that it would take approximately 13,000 acres of the
     land into trust. See 73 Fed. Reg. 30,144 (May 23, 2008).

          Thereafter, a number of entities -- including the State of
     New York, Madison County, Oneida County, various cities and
     towns, the Stockbridge tribe, and several local citizens' groups
     -- filed suit against the Secretary of the Interior to challenge
     his decision to take the OIN's lands into trust. See, e.g., New
     York v. Salazar, No. 6:08-CV-644, 2009 WL 3165591, at *1 n.2,
     2009 U.S. Dist. LEXIS 90071, at *3 n.2 (N.D.N.Y. Sept. 29, 2009)
     (identifying related cases filed in Northern District of New
     York). All but one of those lawsuits remain pending, and as a
     result, the transfer of lands into trust has not yet been
     finalized. Those lawsuits do not affect our disposition of the
     instant appeals.

                                       23
 1   of tribal sovereign immunity from suit.     See Oneida I, 605 F.3d

 2   at 156-60.    We expressly declined to reach any of the "other

 3   three rationales relied upon by the district court" in ruling in

 4   the OIN's favor.10    Id. at 160.

 5                With respect to Stockbridge, we affirmed the denial of

 6   its motion to intervene, agreeing with the district court that it

 7   "lacked an interest in the instant litigation."     Id. at 162; see

 8   id. at 161-63.    We also noted that our ground for decision

 9   "render[ed] minimal the likelihood that Stockbridge w[ould] be

10   prejudiced by its failure to be allowed to intervene."     Id. at

11   163.

12                The Proceedings Before the Supreme Court in 2010-11

13                Following our decision in Oneida I, the Counties

14   petitioned the United States Supreme Court for a writ of

15   certiorari, proposing two questions for review: (1) "whether

16   tribal sovereign immunity from suit, to the extent it should

17   continue to be recognized, bars taxing authorities from

18   foreclosing to collect lawfully imposed property taxes"; and (2)

19   "whether the ancient Oneida reservation in New York was

20   disestablished or diminished."      Petition for Writ of Certiorari

21   at i, Madison County v. Oneida Indian Nation of N.Y., No. 10-72



            One of the members of this panel filed a separate
            10

     concurrence, for himself and another member of this panel,
     inviting Supreme Court review of our application of the doctrine
     of tribal sovereign immunity from suit. See Oneida I, 605 F.3d
     at 163-64 (Cabranes, J., concurring).

                                         24
1   (U.S. July 9, 2010) ("Counties' Cert. Petition").    The Supreme

2   Court granted the Counties' petition, see 131 S. Ct. 459 (2010),

3   and ordered merits briefing.

4               On November 29, 2010, the OIN's tribal council convened

5   and issued a declaration and ordinance waiving "[the OIN's]

6   sovereign immunity to enforcement of real property taxation

7   through foreclosure by state, county and local governments within

8   and throughout the United States."11    Oneida Indian Nation of


         11
              The declaration reads as follows:

         TO OUR BROTHERS, on 2 December 1794, here at our
         homelands of the Oneida Nation, a Treaty was entered
         into with the United States of America which reflected
         the unique and special relationship between our
         governments . . . ; and

         BROTHERS, just one month before, on 11 November 1794,
         the United States made the Treaty of Canandaigua, . . .
         confirming, among other things, the ongoing government-
         to-government relationship between the United States
         and the Nation; and

         BROTHERS, the Nation chooses to preserve its
         sovereignty and also its rights acknowledged by the
         United States in its treaty relationship with the
         Nation, and also wishes to promote a peaceful and
         harmonious relationship with its neighbors today and
         unto the Seventh Generation; and

         BROTHERS, that peaceful and harmonious relationship
         would be served by removing any controversy or doubt as
         to the Nation's ongoing commitment to resolve disputes.

         NOW, THEREFORE, PURSUANT TO THE AUTHORITY VESTED IN THE
         NATION BY VIRTUE OF ITS SOVEREIGNTY AND INHERENT POWERS
         OF SELF GOVERNMENT,

         The Nation hereby waives, irrevocably and perpetually,
         its sovereign immunity to enforcement of real property

                                      25
 1   N.Y., Declaration of Irrevocable Waiver of Immunity, Ordinance

 2   No. O-10-1 (Nov. 29, 2010) (the "Waiver Declaration").    The next

 3   day, the OIN sent a letter notifying the Supreme Court that the

 4   OIN had waived its immunity with respect to "the pending tax

 5   foreclosure proceedings directly at issue in this case and to all

 6   future tax foreclosure proceedings involving the [OIN]'s land."

 7   Letter from Seth P. Waxman, Esq., to Hon. William K. Suter, Clerk

 8   of the Supreme Court of the United States, at 1, Madison County

 9   v. Oneida Indian Nation of N.Y., No. 10-72 (U.S. Nov. 30, 2010).

10   The OIN suggested that in light of this development, "the Court

11   may wish to direct the parties to address how this matter should

12   proceed."    Id.

13                The Counties responded by letter dated December 1,

14   2010.    Emphasizing that the OIN's Waiver Declaration occurred

15   just four days before the submission deadline for their opening

16   merits brief, the Counties asserted that the OIN's waiver

17   "appear[ed] to be a classic example of a litigant 'attempting to

18   manipulate the Court's jurisdiction to insulate a favorable

19   decision from review.'"    Letter from David M. Schraver, Esq., to

20   Hon. William K. Suter, Clerk of the Supreme Court of the United


             taxation through foreclosure by state, county and local
             governments within and throughout the United States.
             The Nation does not waive any other rights, challenges
             or defenses it has with respect to its liability for,
             or the lawful amount of, real property taxes.

             ENACTED THIS 29th DAY OF NOVEMBER, 2010.

                                       26
 1   States, at 1, Madison County v. Oneida Indian Nation of N.Y., No.

 2   10-72 (U.S. Dec. 1, 2010) (quoting City of Erie v. Pap's A.M.,

 3   529 U.S. 277, 288 (2000)).     The Counties also questioned the

 4   scope and permanence of the Waiver Declaration, arguing that the

 5   OIN's waiver was susceptible both of being read narrowly and of

 6   being revoked by a future tribal council.     The Counties therefore

 7   argued that the waiver had not caused the question of tribal

 8   sovereign immunity from suit to become moot.     See id. at 2-4.

 9                The OIN replied the next day.   See Letter from Seth P.

10   Waxman, Esq., to Hon. William K. Suter, Clerk of the Supreme

11   Court of the United States, Madison County v. Oneida Indian

12   Nation of N.Y., No. 10-72 (U.S. Dec. 2, 2010) ("OIN December 2

13   Letter").    The OIN conceded that the timing of its waiver "at

14   this stage of the litigation [was] unusual," id. at 1, but argued

15   that the waiver had not been intended to frustrate the Court's

16   jurisdiction.    Instead, the OIN characterized its Waiver

17   Declaration as a "good-faith effort[]" to address the Counties'

18   concerns about the sufficiency of certain letters of credit that

19   the OIN had posted as part of the federal land-into-trust

20   process.12    Id. at 2.   The Waiver Declaration, according to the

21   OIN, was "intended to remove any doubt" surrounding the letters

22   of credit by providing the Counties with "the necessary

23   assurances that any amounts [of taxes, penalties, and interest]


          12
               See supra note 9.

                                        27
 1   due will be paid once they are judicially determined."   Id. at 1-

 2   2.   The OIN also responded to the Counties' concerns about the

 3   scope and permanence of the Waiver Declaration by representing

 4   that the waiver covered all taxes, penalties, and interest that

 5   were "lawfully due" and that the waiver was "irrevocable and

 6   perpetual."    Id. at 2 (brackets and internal quotation marks

 7   omitted).   Finally, the OIN posited that its waiver had "removed

 8   [the issue of sovereign immunity from suit] from the case," id.

 9   at 3, and suggested that the Court "direct submissions from the

10   parties to address whether the decision below [i.e., Oneida I]

11   should be vacated with instructions to address the other grounds

12   for the injunctions," id. at 4.

13               A final letter from the Counties followed later the

14   same day.   See Letter from David M. Schraver, Esq., to Hon.

15   William K. Suter, Clerk of the Supreme Court of the United

16   States, Madison County v. Oneida Indian Nation of N.Y., No. 10-72

17   (U.S. Dec. 2, 2010).   The Counties expressed their "strong[]

18   disagree[ment]" with the OIN's view that its Waiver Declaration

19   had caused the issue of tribal sovereign immunity from suit to

20   become moot.   Id. at 1.   The Counties agreed with the OIN,

21   however, that "the Court should direct them to file separate

22   submissions addressing the impact, if any," of the OIN's Waiver

23   Declaration.   Id.   Despite this flurry of letters, the Counties

24   proceeded to file their opening merits brief the next day.


                                       28
 1             The Supreme Court did not direct further submissions

 2   from the parties about the effect of the Waiver Declaration.

 3   Instead, on January 10, 2011, the Supreme Court issued a brief

 4   per curiam order referencing and briefly describing the parties'

 5   letter submissions of late November and early December 2010.    See

 6   Madison County, 131 S. Ct. at 704.     The Court did not identify or

 7   address the parties' arguments concerning whether the issue of

 8   tribal sovereign immunity from suit had become moot.    Instead,

 9   the Court stated:

10             We vacate the judgment and remand the case to
11             the United States Court of Appeals for the
12             Second Circuit. That court should address,
13             in the first instance, whether to revisit its
14             ruling on sovereign immunity in light of this
15             new factual development, and -- if necessary
16             -- proceed to address other questions in the
17             case consistent with its sovereign immunity
18             ruling.

19   Id.

20             Proceedings on Remand

21             On remand, we directed the parties to provide us with

22   supplemental letter-briefing.   The OIN; the Counties; the

23   putative intervenor, Stockbridge; and the State of New York (as

24   amicus curiae) have each made such submissions.

25                              DISCUSSION

26             I.   Standard of Review

27             "We review a district court's grant of summary judgment

28   de novo, construing the evidence in the light most favorable to


                                       29
 1   the non-moving party and drawing all reasonable inferences in its

 2   favor."   Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.

 3   2005).    "Summary judgment is appropriate where there exists no

 4   genuine issue of material fact and, based on the undisputed

 5   facts, the moving party is entitled to judgment as a matter of

 6   law."    10 Ellicott Square Court Corp. v. Mtn. Valley Indem. Co.,

 7   634 F.3d 112, 119 (2d Cir. 2011) (internal quotation marks

 8   omitted); see also Fed. R. Civ. P. 56(a).

 9               II.    The OIN's Claims Based Upon Tribal Sovereign
10                      Immunity From Suit and the Nonintercourse Act

11               Our decision in Oneida I affirming the district court's

12   judgments rested solely on our determination that the OIN

13   possessed tribal sovereign immunity from suit.     See Oneida I, 605

14   F.3d at 160.      Since that decision, the OIN has professed to

15   "waive[], irrevocably and perpetually, its sovereign immunity to

16   enforcement of real property taxation through foreclosure by

17   state, county and local governments within and throughout the

18   United States."     Waiver Declaration.

19               In its letter-brief to this Court on remand from the

20   Supreme Court, the OIN represents that its waiver of immunity was

21   "duly enacted" by the OIN's tribal council; that the waiver is

22   "expressly perpetual and irrevocable," meaning that it is "not

23   subject to invalidation" by a future tribal council; and that the

24   waiver "covers all taxes, interest, and penalties held to be

25   lawfully due" to the Counties.     OIN's Ltr.-Br. at 4.   The OIN has

                                        30
 1   also indicated that it "'consider[s] itself judicially estopped

 2   from raising sovereign immunity as a defense to foreclosure

 3   actions to enforce state, county, or local real property taxes.'"

 4   Id. (brackets in original) (quoting OIN December 2 Letter at 3).

 5   Finally, the OIN has "invite[d] the entry of an order reflecting

 6   the irrevocability" of its waiver.   OIN December 2 Letter at 3.

 7             In response, the Counties argue that tribal sovereign

 8   immunity from suit is still a live issue, inasmuch as the parties

 9   continue to disagree about whether the OIN ever possessed, in the

10   first instance, any entitlement to immunity that it could

11   subsequently waive.   They also contend that the OIN has not

12   sufficiently disclaimed its authority to re-assert its tribal

13   sovereign immunity from suit in the future.    They argue, citing

14   United States v. Government of Virgin Islands, 363 F.3d 276 (3d

15   Cir. 2004), that the "OIN has 'not chang[ed] its substantive

16   stance'" on the question of whether it possesses immunity, but

17   instead has only ceded the argument for the "'purely practical

18   reason[]'" of avoiding Supreme Court review.    Counties' Ltr.-Br.

19   at 3 (first brackets in original) (quoting Virgin Islands, 363

20   F.3d at 286).   The Counties therefore urge us to revisit our

21   immunity analysis from Oneida I and conclude, in light of the

22   Supreme Court's intervening grant of a writ of certiorari, that

23   our prior reasoning must have been incorrect.   In the

24   alternative, they ask that we declare that the OIN's waiver has


                                     31
 1   forever barred it from asserting the defense of tribal sovereign

 2   immunity from suit in "in rem foreclosure proceedings and all

 3   related tax collection proceedings."     Id. at 6 (emphasis in

 4   original).

 5                There may well be, as the Counties urge, remaining

 6   disagreements as to whether the OIN possessed tribal sovereign

 7   immunity from suit at the time that these cases were before the

 8   district court and then on appeal to us in the first instance.

 9   But these questions have now become academic.     The OIN, which had

10   prevailed on the issue of tribal sovereign immunity from suit

11   before both the district court and this Court, now assures us, as

12   it did the Supreme Court, that it will no longer invoke the

13   doctrine of tribal sovereign immunity from suit as a basis for

14   preventing the Counties from enforcing property taxes through tax

15   sale or foreclosure.    See Waiver Declaration.   The OIN has thus

16   effectively announced that it has abandoned its argument that it

17   possesses tribal sovereign immunity from suit and, therefore, has

18   indicated that it is no longer seeking declaratory and injunctive

19   relief against the Counties on that basis.

20                Under the circumstances presented here, we accept the

21   OIN's abandonment of its immunity-based claims.    Contrary to the

22   Counties' arguments that the Waiver Declaration may not be

23   sufficiently binding, we understand the waiver to be complete,

24   unequivocal, and irrevocable.    Neither do we have any reason to


                                       32
 1   think that the OIN is using its waiver as a tactic to overturn an

 2   existing unfavorable decision.   To the contrary, our decision in

 3   Oneida I was in its favor.

 4             Moreover, the Counties' concern that the OIN might

 5   attempt to revoke its Waiver Declaration is unfounded.    The OIN

 6   is bound by the doctrine of judicial estoppel.   See, e.g., New

 7   Hampshire v. Maine, 532 U.S. 742, 749 (2001) ("Where a party

 8   assumes a certain position in a legal proceeding, and succeeds in

 9   maintaining that position, he may not thereafter . . . assume a

10   contrary position, especially if it be to the prejudice of the

11   party who has acquiesced in the position formerly taken by him."

12   (brackets and internal quotation marks omitted)).   As the OIN

13   itself has stated:

14             [E]ven if the Nation's "irrevocabl[e] and
15             perpetual[]" waiver were not sufficient to
16             protect the Counties' rights, the doctrine of
17             judicial estoppel would be. . . . [T]he
18             Nation considers itself judicially estopped
19             from raising sovereign immunity as a defense
20             to foreclosure actions to enforce state,
21             county, or local real property taxes; invites
22             the entry of an order reflecting the
23             irrevocability of its declaration and
24             ordinance; and expressly disclaims any
25             intention ever to revoke its waiver.

26   OIN December 2 Letter at 2-3 (citations and footnote omitted).

27   We take the OIN at its word, and we expect that future courts

28   will as well.   Accordingly, the OIN's immunity-based claims are

29   no longer before this Court.

30             We similarly regard the OIN's claims based upon the

                                      33
 1   Nonintercourse Act as having been abandoned on appeal.   In its

 2   letter-brief, the OIN declares that "[i]n light of [its]

 3   representation [that it has waived its tribal sovereign immunity

 4   from suit], the Nation no longer invokes the Nonintercourse Act's

 5   statutory restrictions on the alienation of Indian land as a

 6   defense to tax foreclosures."   OIN's Ltr.-Br. at 10.   We take the

 7   OIN's statement that it "no longer invokes" the Nonintercourse

 8   Act as an indication that the OIN has abandoned its claims

 9   premised on that statute.   As a result, the district court's

10   judgments in the OIN's favor may no longer be sustained on the

11   ground that foreclosure would violate the anti-alienation

12   provisions of the Nonintercourse Act.   We therefore need not

13   consider the merits of the Counties' and the State's arguments

14   that the Nonintercourse Act does not bar property-tax enforcement

15   through tax sale or foreclosure.

16             The decision whether to vacate the judgment of the

17   district court in cases where a claim has been abandoned or has

18   become moot on appeal is a discretionary one and "depends on the

19   equities of the case."   Russman v. Bd. of Educ., 260 F.3d 114,

20   121 (2d Cir. 2001).   But vacatur is common where it is the

21   "unilateral action of the party who prevailed below" that causes

22   a judgment to become unreviewable.   U.S. Bancorp Mortg. Co. v.

23   Bonner Mall P'ship, 513 U.S. 18, 25 (1994); accord Brooks v.

24   Travelers Ins. Co., 297 F.3d 167, 172 (2d Cir. 2002); Russman,



                                     34
 1   260 F.3d at 121-22.   It has been said that the winning party in

 2   the district court should not be able to prevent appellate review

 3   of a perhaps-erroneous decision by attempting to render the

 4   district court's judgment unappealable.   See Penguin Books USA

 5   Inc. v. Walsh, 929 F.2d 69, 73 (2d Cir. 1991).   In other words,

 6   the party aggrieved by a district-court judgment should not be

 7   required to "suffer the adverse res judicata effects" of that

 8   judgment if the appeal was terminated through no fault of his or

 9   her own.   Associated Gen. Contractors of Conn., Inc. v. City of

10   New Haven, 41 F.3d 62, 67 (2d Cir. 1994); see also Van Wie v.

11   Pataki, 267 F.3d 109, 115 (2d Cir. 2001); Mfrs. Hanover Trust Co.

12   v. Yanakas, 11 F.3d 381, 383 (2d Cir. 1993).

13              Here, the OIN has voluntarily abandoned its claims

14   based upon the doctrine of tribal sovereign immunity from suit

15   and the Nonintercourse Act.   It would therefore be prejudicial to

16   the Counties to leave the district court's judgments in place

17   insofar as they rested upon these grounds.   Accordingly, we

18   conclude that the proper course in this instance is to vacate so

19   much of the district court's judgments as rests upon the doctrine

20   of tribal sovereign immunity from suit and the Nonintercourse

21   Act.   See, e.g., Arave v. Hoffman, 552 U.S. 117, 118 (2008)

22   (partially vacating judgment after habeas-corpus petitioner, who

23   prevailed before court of appeals, abandoned his ineffective-

24   assistance claim after Supreme Court granted writ of certiorari);



                                     35
 1   City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S.

 2   188, 199-200 (2003) (partially vacating judgment after plaintiff,

 3   who prevailed before court of appeals, abandoned one of its

 4   claims); Arizonans for Official English v. Arizona, 520 U.S. 43,

 5   71-72 (1997) (vacating district court judgment in plaintiff's

 6   favor where plaintiff had resigned her public-sector employment,

 7   out of which her claims arose, while case was pending before

 8   court of appeals); see also 13C Charles Alan Wright et al.,

 9   Federal Practice & Procedure § 3533.10.1, at 578-79 (3d ed.

10   2008).   We also conclude that under these circumstances --

11   because the OIN assures the world at large and us in particular

12   that its Waiver Declaration is irrevocable and subject to the

13   doctrine of judicial estoppel -- those claims must be dismissed

14   with prejudice.   See Arave, 552 U.S. at 118-19; Deakins v.

15   Monaghan, 484 U.S. 193, 200-01 (1988).   And we also direct the

16   district court, on remand, to include in its amended judgment in

17   each lawsuit that the OIN's waiver of its tribal sovereign

18   immunity from suit is "irrevocable" and subject to the doctrine

19   of judicial estoppel.

20              III.   Due Process

21              Having determined that the OIN abandoned two of its

22   claims for relief, we proceed to consider the third rationale

23   supporting the district court's judgments: that the Counties'




                                     36
1   notices to the OIN of the expiration of its right of redemption

2   failed to comport with federal due-process requirements.13

         13
           In its several complaints, the OIN alleged that each
    County's foreclosure procedures violated both federal and state
    constitutional due-process standards. In granting summary
    judgment to the OIN on its due-process claims, the district court
    did not state whether its rulings rested upon the Fourteenth
    Amendment to the U.S. Constitution, or Article I, section 6 of
    the New York Constitution, or both. See Oneida County I, 432 F.
    Supp. 2d at 289-90 (referencing only "the [OIN's] right to due
    process"); Madison County I, 401 F. Supp. 2d at 230-31 (same).
    But the district court relied principally on McCann v. Scaduto,
    71 N.Y.2d 164, 519 N.E.2d 309, 524 N.Y.S.2d 398 (1987), a
    decision in which the New York Court of Appeals held that Nassau
    County's tax-enforcement procedures "violated the Federal
    constitutional guarantee of due process of law." Id. at 170
    (emphasis added); see also id. at 179 (Simons, J., dissenting).
    And in the summary-judgment proceedings in the district court,
    the OIN appeared to frame its due-process argument primarily in
    terms of federal constitutional standards. It has not relied
    upon its state-law claims on appeal.

         With some exceptions, New York courts have interpreted the
    due-process guarantees of the New York Constitution and the
    United States Constitution to be coextensive -- or assumed that
    they are. See, e.g., Economico v. Village of Pelham, 50 N.Y.2d
    120, 124-25, 405 N.E.2d 694, 428 N.Y.S.2d 213 (1980) (appearing
    to treat state and federal constitutional standards as
    coextensive for purpose of resolving procedural due process
    claim), abrogated on other grounds by Prue v. Hunt, 78 N.Y.2d
    364, 366, 581 N.E.2d 1052, 575 N.Y.S.2d 806 (1991); Cent. Sav.
    Bank in City of N.Y. v. City of N.Y., 280 N.Y. 9, 19 N.E.2d 659
    (1939) (per curiam); People ex rel. Newcomb v. Metz, 64 A.D.2d
    219, 222, 409 N.Y.S.2d 554, 556 (3d Dep't 1978). But see
    Hernandez v. Robles, 7 N.Y.3d 338, 362, 855 N.E.2d 1, 821
    N.Y.S.2d 770 (2006) (R.S. Smith, J., plurality opinion) (citing
    cases involving criminal defendants or prisoners in which the
    Court of Appeals has interpreted the state due-process clause to
    provide greater protections than its federal analogue).

         We need not decide, however, whether Article I, section 6 of
    the New York Constitution provides any greater relief than does
    the Fourteenth Amendment to the United States Constitution,
    inasmuch as the OIN has not asserted that it is entitled to any
    greater due-process protection under state constitutional law
    than under federal constitutional law. The argument,

                                   37
 1   A.   Governing Law

 2                Our analysis of procedural-due-process claims

 3   ordinarily proceeds in two steps.      First, we ask "whether there

 4   exists a . . . property interest of which a person has been

 5   deprived."    Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011).    If

 6   so, we then "ask whether the procedures followed by the State

 7   were constitutionally sufficient."     Id.; accord, e.g., Adams v.

 8   Suozzi, 517 F.3d 124, 127 (2d Cir. 2008).

 9                Property interests "are not created by the

10   Constitution," but "are created and their dimensions are defined

11   by existing rules or understandings that stem from an

12   independent source such as state law."     Bd. of Regents v. Roth,

13   408 U.S. 564, 577 (1972); accord O'Connor v. Pierson, 426 F.3d

14   187, 196 (2d Cir. 2005).    The Counties do not appear to dispute

15   that the OIN possesses a cognizable property interest under New

16   York law in the right to redeem its property from foreclosure.

17   See Orange County Comm'r of Fin. v. Helseth, 875 N.Y.S.2d 754,

18   760 (N.Y. Sup. Ct. 2009) ("Notice of a right to redeem one's

19   property from the municipality into which title vests following

20   a tax lien foreclosure sale enjoys constitutional procedural due

21   process protection."); cf. In re Pontes, 310 F. Supp. 2d 447,

22   454 n.8 (D.R.I. 2004) ("The right of redemption is a property



     irrespective of its plausibility, is therefore forfeited on
     appeal. See, e.g., City of N.Y. v. Mickalis Pawn Shop, LLC, 645
     F.3d 114, 137 (2d Cir. 2011).

                                       38
 1   interest distinct and separate [under Rhode Island law] from an

 2   owner's right of ownership in the underlying property itself.").

 3   But cf. Weigner v. City of New York, 852 F.2d 646, 652 (2d Cir.

 4   1988) (stating that once a government sends personal notice that

 5   a "foreclosure action had been initiated," it is "not required

 6   to send additional notices as each step in the foreclosure

 7   proceeding [is] completed or when each of the available remedies

 8   [is] about to lapse"), cert. denied, 488 U.S. 1005 (1989).     We

 9   assume, for the purpose of resolving these appeals, that the OIN

10   has a constitutionally protected property interest in its right

11   to redemption from foreclosure.

12             The Fourteenth Amendment to the United States

13   Constitution provides that "[n]o state shall . . . deprive any

14   person of . . . property[] without due process of law."   U.S.

15   Const. amend. XIV, § 1.   "Before a State may take property and

16   sell it for unpaid taxes, the Due Process Clause of the

17   Fourteenth Amendment requires the government to provide the

18   owner 'notice and opportunity for hearing appropriate to the

19   nature of the case.'"    Jones v. Flowers, 547 U.S. 220, 223

20   (2006) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339

21   U.S. 306, 313 (1950)).

22             The OIN's claims center on the requirement of notice.

23   It is axiomatic that where notice is legally required, the Due

24   Process Clause of the Fourteenth Amendment requires notice that



                                       39
 1   is "'reasonably calculated, under all the circumstances, to

 2   apprise interested parties of the pendency of the action and

 3   afford them an opportunity to present their objections.'"

 4   Jones, 547 U.S. at 226 (quoting Mullane, 339 U.S. at 314).

 5   Notice must be of "such nature as reasonably to convey the

 6   required information," Mullane, 339 U.S. at 314, and "[t]he

 7   means employed must be such as one desirous of actually

 8   informing the [recipient] might reasonably adopt to accomplish

 9   it," id. at 315.   The notice provided also "must afford a

10   reasonable time for those interested to make their appearance."

11   Id. at 314 (citing Roller v. Holly, 176 U.S. 398 (1900)).     In

12   assessing the adequacy of a particular form of notice, we must

13   "balanc[e] the 'interest of the State' against 'the individual

14   interest sought to be protected by the Fourteenth Amendment.'"

15   Jones, 547 U.S. at 229 (quoting Mullane, 339 U.S. at 314).     But

16   "[i]n the context of a wide variety of proceedings[,] . . . the

17   Supreme Court has consistently held that mailed notice satisfies

18   the requirements of due process."    Grievance Comm. for S. Dist.

19   of N.Y. v. Polur, 67 F.3d 3, 6 (2d Cir. 1995) (ellipsis in

20   original; internal quotation marks omitted), cert. denied, 517

21   U.S. 1196 (1996); see also Mullane, 339 U.S. at 313 ("Personal

22   service of written notice . . . is the classic form of notice

23   [that is] always adequate in any type of proceeding.").




                                     40
 1                We have observed that the Fourteenth Amendment

 2   "requires as much notice as is practicable to inform a [property

 3   owner] of legal proceedings against his property," Brody v.

 4   Vill. of Port Chester, 434 F.3d 121, 130 (2d Cir. 2005) (citing

 5   Mullane, 339 U.S. at 315), and that "a property owner must be

 6   given notice of foreclosure proceedings before foreclosure can

 7   occur," Akey v. Clinton County, 375 F.3d 231, 235 (2d Cir.

 8   2004); accord Jones, 547 U.S. at 234.     But due process requires

 9   only that a state take steps reasonably calculated to provide

10   actual notice,14 not that the notice actually reach the

11   recipient.    "Due process does not require that a property owner

12   receive actual notice before the government may take his

13   property."    Jones, 547 U.S. at 226; accord Miner v. Clinton

14   County, 541 F.3d 464, 471 (2d Cir. 2008), cert. denied, 129 S.

15   Ct. 1625 (2009).

16                However, although due process does not require actual

17   notice, actual notice satisfies due process -- so long as that

          14
            The lexicon employed in this context can be confusing.
     The term "actual notice" is sometimes used to refer to personal
     notice sent by mail, as opposed to constructive notice by
     publication. See, e.g., Weigner, 852 F.2d at 651 n.6; McCann,
     71 N.Y.2d at 174. Other times, "actual notice" is used to
     signify the successful receipt of notice by its intended
     recipient, as opposed to the act of its sending. See, e.g.,
     Dusenbery v. United States, 534 U.S. 161, 170 n.5 (2002); Baker
     v. Latham Sparrowbush Assocs., 72 F.3d 246, 254 (2d Cir. 1995).
     In this opinion, we use the term "actual notice" to denote the
     successful receipt of notice, and the term "personal notice" to
     denote the sending of notice by mail to the record owner. Cf.
     N.Y. Real Prop. Tax Law § 1125 (referring to mailed notice as
     "personal notice").

                                       41
 1   notice "apprises [a party] of the pendency of the action and

 2   affords [it] an opportunity to respond."    Baker, 72 F.3d at 254.

 3   Indeed, state and federal courts have frequently decided, in

 4   cases where a plaintiff received actual notice, that the Due

 5   Process Clause was not offended even though the defendant had

 6   failed to fulfill all technical notice requirements imposed by

 7   statute or rule.   See, e.g., United Student Aid Funds, Inc. v.

 8   Espinosa, 130 S. Ct. 1367, 1378 (2010); In re Medaglia, 52 F.3d

 9   451, 455 (2d Cir. 1995); United States v. One 1987 Jeep

10   Wrangler, 972 F.2d 472, 482 (2d Cir. 1992); Sendel v. Diskin,

11   277 A.D.2d 757, 759, 716 N.Y.S.2d 471, 473 (3d Dep't 2000);

12   Pompe v. City of Yonkers, 179 A.D.2d 628, 629-30, 578 N.Y.S.2d

13   585, 587 (2d Dep't 1992).

14   B.    The Counties' Procedures

15             The Counties employ different statutory procedures for

16   property-tax enforcement.

17              1.   Madison County.   Madison County employs the

18   default tax-enforcement procedure established by Article 11 of

19   the New York Real Property Tax Law (the "RPTL").    The RPTL

20   provides for a two-year, pre-foreclosure redemption period.15

21   The redemption period starts to run on the "lien date," which


          15
             Specifically, RPTL § 1110(1) provides that "[r]eal
     property subject to a delinquent tax lien may be redeemed by
     payment to the enforcing officer, on or before the expiration of
     the redemption period, of the amount of the delinquent tax lien
     or liens, including all charges authorized by law."


                                       42
 1   is the date on which unpaid taxes and other assessments

 2   automatically become a lien against the property.    Id. §§ 902,

 3   1102(4).   If taxes are not paid within the first month after

 4   the lien date, interest and penalties begin to accrue.    Id.

 5   §§ 924, 924-a, 936(2).    Ten months after the lien date, a list

 6   of delinquent taxes is prepared and filed with the county

 7   clerk.   Id. § 1122.    Twenty-one months after the lien date

 8   (i.e., three months before the end of the redemption period),

 9   the enforcing authority executes a petition of foreclosure.

10   Id. § 1123(1)-(2).     The filing of this petition is accompanied

11   by published notice, id. § 1124(1), as well as personal notice

12   by certified and regular first-class mail to the property

13   owner, id. § 1125(1).     These notices must include the last date

14   on which the properties may be redeemed.    Id. § 1125(2).

15   Although personalized tax statements are mailed annually to all

16   property owners, see id. § 922, the only personal notice sent

17   to owners which specifically identifies the expiration of the

18   redemption period is the notice sent twenty-one months after

19   the lien date pursuant to RPTL § 1125.    See generally Kennedy

20   v. Mossafa, 100 N.Y.2d 1, 6-8, 789 N.E.2d 607, 759 N.Y.S.2d 429

21   (2003) (describing the RPTL tax-foreclosure procedures).

22              In early December 2004, Madison County executed a

23   petition of foreclosure in state court with respect to some

24   ninety-eight parcels of OIN-owned property to enforce overdue



                                      43
 1   taxes owed since the lien date of January 1, 2003.   The County

 2   mailed personal notice to the OIN on December 8, 2004, and the

 3   OIN has not disputed receipt.   According to that notice, the

 4   specified last day for redemption of the ninety-eight parcels

 5   was March 31, 2005.    After the Supreme Court issued its decision

 6   in Sherrill III on March 29, 2005, Madison County unilaterally

 7   extended the OIN's redemption deadline to June 3, 2005, and

 8   later to July 14, 2005, providing notice of the extensions to

 9   the OIN in each instance.   The OIN successfully obtained a

10   preliminary injunction from the district court on July 1, 2005,

11   preventing Madison County from undertaking further tax-

12   enforcement efforts.

13             2.   Oneida County.   Unlike Madison County, Oneida

14   County has opted out of the RPTL procedures.   See, e.g., RPTL

15   § 1104(2) (creating opt-out mechanism).   Instead, it employs its

16   own two-step process: first, a tax sale of the property, and

17   second, administrative transfer of title or judicial

18   foreclosure, at the tax-sale purchaser's option.   See 1902 Laws

19   of N.Y. ch. 559, §§ 1 to 16, amended by 1918 Laws of N.Y. ch.

20   474, 1920 Laws of N.Y. ch. 111, 1922 Laws of N.Y. ch. 200, 1937

21   Laws of N.Y. ch. 800, 1943 Laws of N.Y. ch. 712, and 1944 Laws

22   of N.Y. ch. 342 (collectively, "Oneida County Tax Law"); see

23   also Aff. of Daniel Yerdon, Deputy Comm'r of Fin., Oneida

24   County, Oneida County II, No. 6:05-CV-945 (N.D.N.Y. Jan. 6,



                                      44
 1   2006), ECF Doc. 23, attach. 40 ("Yerdon Aff.").        Taxes come due

 2   each year on January 1, but may be paid without penalty or

 3   interest through January 31.     See Yerdon Aff. ¶ 4.     In February

 4   of each year, a tax-delinquency notice is sent to the record

 5   owner of each delinquent parcel.16       Id. ¶ 5.   On the last

 6   business day of December, a tax auction is held at which the

 7   County sells all properties for which taxes have been delinquent

 8   for six months or more.     See Oneida County Tax Law §§ 5-6;

 9   Yerdon Aff. ¶ 8.     Since 1973, however, the County has had the

10   authority to purchase delinquent properties without first

11   offering them to public bidders.        With respect to each of the

12   187 OIN-owned parcels at issue in this litigation, Oneida County

13   exercised its option to purchase the properties without a public

14   sale.

15                 Following the tax sale, a post-sale redemption period

16   begins.17     See Oneida County Tax Law § 8; Yerdon Aff. ¶¶ 11, 15-

17   17.   The redemption period, as it has come to be applied, lasts


              16
            This delinquency notice is not formally required by the
     Oneida County Tax Law, but is sent as a matter of standard
     administrative practice in order to align the County's
     practices with RPTL § 987. See Yerdon Aff. ¶ 5.
             17
             The Oneida County Tax Law provides, in pertinent part
     and as amended, that "[t]he owner, occupant, or any other person
     may redeem any real estate sold for taxes . . . at any time
     within one year after the last day of such sale, by paying to the
     country treasurer . . . the sum of one dollar plus the sum
     mentioned in his certificate of sale together with the interest
     thereon." Oneida County Tax Law § 8; see also Yerdon Aff. ¶ 11.


                                        45
 1   for three years and thirty days.18    See Yerdon Aff. ¶¶ 15-18.

 2   The Oneida County Tax Law dictates that notice of the expiration

 3   of the redemption period is to be published "within the three

 4   months immediately preceding the expiration."    Oneida County Tax

 5   Law § 9; see also Yerdon Aff. ¶¶ 12-14.    However, as a matter of

 6   standard administrative practice,19 Oneida County also sends by

 7   certified mail a "Final Notice Before Redemption" to the record

 8   owner thirty days prior to expiration.    See Yerdon Aff. ¶ 18.

 9   The Final Notice Before Redemption advises the owner that the

10   property was sold at tax sale and provides the final date on

11   which the property can be redeemed.    See id.   According to the

12   County, the foregoing process was followed with respect to all

13   187 parcels of OIN-owned property at issue.20    See id. ¶¶ 19-21.

           18
             The statute itself provides for only a one-year
     redemption period. See Oneida County Tax Law § 8. However,
     "[d]espite the expiration of the one-year redemption period,
     the County does not recognize this event as being the final
     foreclosure of the right of redemption and, instead, gives the
     property owner an additional two-year redemption period."
     Yerdon Aff. ¶ 15. At the end of this three-year period, the
     County sends the Final Notice Before Redemption, and then
     affords the owner an additional thirty days to redeem the
     property. Id. ¶¶ 16-18.
          19
            The statute provides that, aside from constructive notice
     by publication, "[n]o other further or different notice of the
     expiration of the time to redeem shall be required to be
     published, served upon or given to any person whatsoever."
     Oneida County Tax Law § 9.
           20
            The Final Notices for these 187 parcels were served on
     the OIN in three batches. First, on June 3, 2005, the County
     delivered notices to the OIN with regard to 59 parcels, with a
     redemption expiration date of July 29, 2005. Second, on
     September 26, 2005, the County delivered notices for 62 parcels
     with a redemption expiration date of October 29, 2005.

                                    46
 1   C.   Analysis

 2                The district court concluded that each County's

 3   redemption notices failed to comport with due process.    We

 4   conclude to the contrary that both Counties are entitled to

 5   summary judgment on the OIN's due-process claims.

 6                In explaining our conclusion, it may be useful to

 7   begin by noting what is not at issue.    First, the OIN does not

 8   contest that each County sent to it personal notice by mail of

 9   the expiration of the respective redemption periods.    Second,

10   the OIN does not deny that it actually received these notices, a

11   fact that distinguishes this litigation from the much more

12   common due-process challenge in which a plaintiff contests the

13   sufficiency of a notice that failed to reach its intended

14   recipient.    See, e.g., Jones, 547 U.S. at 225; Miner, 541 F.3d

15   at 471-73; Akey, 375 F.3d at 235-37.     Third, the OIN does not

16   dispute the Counties' assertions that they complied with their

17   respective statutory and administrative requirements for

18   notifying owners of the final date for redemption, including

19   sending personal notice at least three months in advance of


     Finally, on October 27, 2005, the County delivered notices for
     a final 66 parcels, whose redemption expiration dates are not
     in the record.

          As to the 59 parcels identified in the first batch of
     Final Notices, the OIN and Oneida County reached agreement on
     August 1, 2005 to extend the redemption period indefinitely
     for those parcels, pending the resolution of this litigation.
     In exchange, the OIN made a nonrefundable payment to Oneida
     County of $650,000 as an advance payment of any back taxes
     later held to be lawfully due.

                                       47
 1   expiration (as to Madison County) and at least thirty days in

 2   advance of expiration (as to Oneida County).21    The OIN's

 3   argument, therefore, is not that it failed to receive actual

 4   notice of the expiration of the redemption periods at the time

 5   mandated by each County's tax enforcement procedures, but that

 6   the notices provided pursuant to these procedures were not given

 7   sufficiently in advance of the respective expiration dates to

 8   satisfy federal due-process standards.

 9             As the basis for the proposition that the Counties'

10   notices were constitutionally insufficient, the OIN and the

11   district court each have relied principally on McCann.    There,

12   the New York Court of Appeals struck down the tax-enforcement

13   procedures of Nassau County, New York, as inconsistent with the

14   Due Process Clause of the Fourteenth Amendment.    See McCann, 71

15   N.Y.2d at 177-78.    The Nassau County statute provided for a two-

16   step scheme somewhat similar to Oneida County's: first, the sale

17   of a tax lien upon the property, followed by a two-year post-

18   sale redemption period; and second, the transfer of title to the

19   purchaser of the tax lien following the expiration of that

20   redemption period.   See Oneida County I, 432 F. Supp. 2d at 290

21   (observing that Oneida County's procedures are "strikingly

          21
            Indeed, Madison County gave notice of the end of the
     redemption period approximately four months in advance of the
     original deadline, longer than the three-month period
     contemplated by RPTL § 1125. And Oneida County gave such notice
     approximately six weeks in advance of expiration, longer than the
     thirty-day period that the County normally provides.

                                      48
 1   similar" to those at issue in McCann).    Crucially, however,

 2   Nassau County did not provide any personal notice to the owner

 3   prior to the tax lien sale.   It required only that notice of the

 4   tax lien sale be "published three times in a newspaper of

 5   general circulation."    McCann, 71 N.Y.2d at 170.   The Court of

 6   Appeals, relying on Mennonite Board of Missions v. Adams, 462

 7   U.S. 791 (1983), concluded that Nassau County's "failure to

 8   provide [property owners] with actual notice of the tax lien

 9   sales . . . deprived them of due process of law," id. at 172,

10   because the tax-lien sale itself constituted an event that

11   "substantially affected" the owner's property interest, id. at

12   176; see also, e.g., id. (describing the tax-lien sale as "the

13   event that moves the Sword of Damocles directly over the head of

14   a property owner").   The Court of Appeals thereby overruled one

15   of its previous decisions, Botens v. Aronauer, 32 N.Y.2d 243,

16   298 N.E.2d 73, 344 N.Y.S.2d 892 (1973), appeal dismissed, 414

17   U.S. 1059 (1973), which had held that due-process standards did

18   not require that personal notice of tax-sale proceedings be sent

19   to a property owner, so long as constructive notice by

20   publication was given.   See McCann, 71 N.Y.2d at 176.

21             In the course of its decision in McCann, the Court of

22   Appeals also considered Nassau County's argument that its

23   statute was constitutional because, even though the statute did

24   not require personal notice of the tax-lien sale, it did at



                                      49
 1   least provide for personal notice of the expiration of the two-

 2   year post-sale redemption period.     See id. at 177.   Rejecting

 3   that argument, the Court of Appeals observed that the statute

 4   required such notice only at the point at which three months in

 5   the redemption period remained, id. at 177-78, which the court

 6   concluded was too late in the overall tax-enforcement process to

 7   provide the owner with timely notice of the proceedings.     In

 8   that connection, the Court of Appeals also took note of an

 9   apparent tension between the fact that the statute created a

10   two-year statutory redemption period, but only provided three

11   months' advance notice of its expiration.    Id.   It reasoned that

12   the statute's failure to provide for notice of the tax lien sale

13   at the first stage of the process also effectively frustrated

14   the "legislative intention" that owners be afforded two years in

15   which to redeem their properties.22    Id.

16             The OIN, latching onto these final steps of the Court

17   of Appeals' analysis, broadly construes McCann as dictating that

18   the Due Process Clause requires that written notice of the date

19   of expiration of a statutory redemption period always be given

20   at the beginning of that period.    It argues that McCann "held

21   that it offends due process principles for taxing jurisdictions

          22
            The Court of Appeals also stated that "[t]he truncated
     three-month period would in any event be troubling," in light of
     the substantial amount of interest and penalties that would have
     accrued in the twenty-one months since the tax sale. McCann, 71
     N.Y.2d at 178. But it did not explicitly hold that three months
     was too short a time to "produce the funds necessary to avoid
     forfeiture of the title." Id.

                                    50
 1   to truncate statutory redemption periods by serving notice of

 2   redemption rights and deadlines that are much shorter than the

 3   redemption period."   OIN Br. at 27; see also id. at 95

 4   ("McCann's holding as to taxation is that, when the Legislature

 5   establishes a redemption period of specified duration, due

 6   process requires that notice of redemption rights be sent to

 7   taxpayers at the outset of that period.").   The district court,

 8   accepting the OIN's reading of McCann, concluded that, in each

 9   of the OIN's lawsuits against the City of Sherrill, Madison

10   County, and Oneida County, the defendants' failures to send

11   notice to the OIN of the date of expiration of the redemption

12   period "at the beginning of the redemption period[] violate[d]

13   the [OIN's] right to due process."   Oneida County I, 432 F.

14   Supp. 2d at 290; accord Madison County I, 401 F. Supp. 2d at 230

15   (concluding that because the RPTL provides a two-year redemption

16   period, "in order to comport with due process [Madison] County

17   must have given the Nation notice two years prior to expiration

18   of the redemption period"); Sherrill I, 145 F. Supp. 2d at 257-

19   58 (concluding that the City of Sherrill's foreclosure

20   procedures violated due process for the same reason).

21             We are not persuaded that McCann should be read as the

22   OIN suggests.   The decision primarily concerned the

23   constitutionality of a statute that provided a two-step tax-

24   enforcement process, but did not require that any personal



                                     51
 1   notice be given to property owners of the first step in that

 2   process, the tax lien sale.    See McCann, 71 N.Y.2d at 176-77.

 3   To the extent that the Court of Appeals also considered the

 4   question of personal notice during the post-sale redemption

 5   period, it concluded only that such notice, if given late in the

 6   redemption period, does not make up for the fact that no

 7   personal notice had been given of the tax-lien sale in the first

 8   place.    Id. at 177-78.   We therefore conclude that the OIN

 9   misreads McCann in interpreting that decision to impose a rigid

10   requirement that the commencement of the redemption period, and

11   personal notice of the date of expiration of that period, be

12   perfectly contemporaneous, no matter the surrounding

13   circumstances.

14               However, even if McCann could be read as articulating

15   a requirement that personal notice of the date of expiration of

16   a redemption period be given at the commencement of that period23

          23
             At least one Appellate Division case has relied upon
     McCann for the proposition that a taxing authority may not
     provide a notice period significantly shorter in length than the
     redemption period to which the notice is addressed. In Yagan v.
     Bernardi, 256 A.D.2d 1225, 684 N.Y.S.2d 117 (4th Dep't 1998), the
     court ruled that the City of Syracuse failed to afford due
     process to a property owner because, after expiration of a one-
     year redemption period (during which no personal notice was
     given), the City mailed a notice to the owner permitting him only
     three weeks in which to redeem the property. The Yagan court
     ruled that the notice "ha[d] the effect of reducing the
     redemption period from one year to three weeks" and that it
     therefore "'d[id] not afford a realistic opportunity to produce
     the funds necessary to avoid forfeiture of the title or sell the
     encumbered property.'" Id. at 1226, 684 N.Y.S.2d at 119 (quoting
     McCann, 71 N.Y.2d at 178); see also Lyon v. Estate of Cornell,

                                       52
 1   -- or as suggesting that three months' advance notice of the

 2   expiration of a period is constitutionally insufficient --

 3   neither we nor the district court are bound by any such holding.

 4   McCann rested solely on an interpretation of the Due Process

 5   Clause of the Fourteenth Amendment.   See id. at 169-70; id. at

 6   179 (Simons, J., dissenting).   Federal courts are not bound to

 7   follow a state court's interpretation of the federal

 8   Constitution.   See Carvajal v. Artus, 633 F.3d 95, 109 (2d Cir.

 9   2011); CFCU Cmty. Credit Union v. Hayward, 552 F.3d 253, 266 (2d

10   Cir. 2009).


     269 A.D.2d 737, 738, 703 N.Y.S.2d 325, 326 (4th Dep't 2000)
     (relying on Yagan and holding that 18 days' advance notice of a
     tax sale was "insufficient as a matter of law to provide the
     Estate with sufficient time to present its objections").

          Most New York courts that have cited McCann, however, appear
     instead to rely on that decision for its principal holding that
     due process requires personal notice to a landowner prior to a
     tax-lien sale, and that subsequent personal notice of the
     expiration of the redemption period alone does not suffice. See,
     e.g., Zaccaro ex rel. Zaccaro v. Cahill, 100 N.Y.2d 884, 889, 800
     N.E.2d 1096, 768 N.Y.S.2d 730 (2003); Garden Homes Woodlands Co.
     v. Town of Dover, 95 N.Y.2d 516, 519, 742 N.E.2d 593, 720
     N.Y.S.2d 79 (2000); Szal v. Pearson, 289 A.D.2d 562, 562, 735
     N.Y.S.2d 200, 201 (2d Dep't 2001); Meadow Farm Realty Corp., Ltd.
     v. Pekich, 251 A.D.2d 634, 635-36, 676 N.Y.S.2d 203, 205 (2d
     Dep't 1998); Anthony v. Town of Brookhaven, 190 A.D.2d 21, 26,
     596 N.Y.S.2d 459, 461-62 (2d Dep't 1993); T.E.A. Marine Auto.
     Corp. v. Scaduto, 181 A.D.2d 776, 779-80, 581 N.Y.S.2d 370, 373-
     74 (2d Dep't 1992); Metz v. Dorsey, 146 A.D.2d 845, 846-47, 536
     N.Y.S.2d 250, 252 (3d Dep't 1989); LVF Realty Co. v. Harrington,
     146 A.D.2d 607, 609, 536 N.Y.S.2d 840, 841-42 (2d Dep't 1989);
     see also Quinn v. Wright, 72 A.D.3d 1052, 1053-54, 900 N.Y.S.2d
     135, 136-37 (2d Dep't 2010) (citing Szal v. Pearson and
     confirming that "[a] notice to redeem that is served after the
     tax sale in a manner that provides adequate due process
     protections to the property owner does not alleviate a failure to
     provide constitutionally-adequate notice of the tax sale").

                                     53
 1             Moreover, we do not regard as persuasive an

 2   interpretation of the Due Process Clause that would impose a

 3   rigid requirement as to the precise timing with which notice

 4   must be given.24   "The due process right to fair notice is

 5   a . . . general rule of law that demands a substantial element

 6   of judgment and [that] can hardly be implemented mechanically."

 7   Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 157 (2d

 8   Cir. 2009) (citation and internal quotation marks omitted); see

 9   also Gilbert v. Homar, 520 U.S. 924, 930 (1997); Baker, 72 F.3d

10   at 254; In re Drexel Burnham Lambert Grp. Inc., 995 F.2d 1138,

11   1144 (2d Cir. 1993) (observing that due-process notice

12   requirement should not be interpreted "so inflexibly as to make

          24
            If McCann had indeed intended to hold that perfect
     temporal alignment is required between the commencement of a
     redemption period and the notice of that period's date of
     expiration, the New York courts themselves have not followed
     that rule. See, e.g., Carney v. Philippone, 1 N.Y.3d 333, 342-
     43, 806 N.E.2d 131, 136-37, 774 N.Y.S.2d 106, 111-12 (2004)
     (interpreting the Onondaga County Tax Act as providing a two-
     year redemption period and requiring six months' advance
     personal notice of expiration, and holding that that
     arrangement was "consonant with the requirements of due
     process"). Moreover, Article 11 of the RPTL -- the statute
     governing the tax-enforcement process followed by Madison
     County -- has routinely been held or assumed to be
     constitutional. See, e.g., Harner v. County of Tioga, 5 N.Y.3d
     136, 141, 833 N.E.2d 255, 258, 800 N.Y.S.2d 112, 115 (2005) (no
     due process violation where County's notice procedures "fully
     compl[ied]" with Article 11 of the RPTL); Kennedy, 100 N.Y.2d
     at 9 (observing that "RPTL 1125 essentially encapsulated the
     two requirements of Mullane and Mennonite" and explicitly
     upholding its notice procedures as constitutional); see also In
     re Foreclosure of Tax Liens by County of Schuyler, 83 A.D.3d
     1243, 1246, 921 N.Y.S.2d 376, 379 (3d Dep't 2011); In re
     Foreclosure of Tax Liens by County of Sullivan, 79 A.D.3d 1409,
     1411, 912 N.Y.S.2d 786, 788 (3d Dep't 2010); In re Foreclosure
     of Tax Liens, 72 A.D.3d 1636, 1637, 900 N.Y.S.2d 524, 525 (4th
     Dep't 2010); In re City of Lockport, 187 A.D.2d 993, 993, 593
     N.Y.S.2d 472, 472-73 (4th Dep't 1992).

                                     54
 1   it an 'impractical or impossible obstacle[].'" (quoting Mullane,

 2   339 U.S. at 314)(alteration in In re Drexel)).

 3                Having considered and rejected the OIN's reading of

 4   McCann, we conclude that the OIN has failed to demonstrate that

 5   the notice it received from the Counties was constitutionally

 6   insufficient.    The OIN does not deny that it received actual

 7   notice of the date of expiration of the redemption periods and

 8   that, in each case, it received such notice well in advance of

 9   the deadline -- indeed, further in advance than the Counties'

10   standard practices require.    Cf. Goodrich v. Ferris, 214 U.S.

11   71, 81 (1909) ("[O]nly in a clear case will a notice authorized

12   by the legislature be set aside as wholly ineffectual on account

13   of the shortness of the time." (internal quotation marks

14   omitted)).

15                And, critically, the OIN has not proffered any

16   evidence that it suffered injury from the Counties' alleged

17   failure to provide personal notice of the expiration of the

18   redemption period any earlier.    As the State of New York argues

19   in its amicus brief, "[t]he OIN has not suggested that its

20   vigorous defense of the foreclosure proceedings was

21   disadvantaged in any particular way by the length of the notice

22   it received."    New York State Amicus Br. at 21 n.8.

23                To the contrary, the record reflects that the OIN had

24   sufficient notice of the Counties' tax-enforcement proceedings



                                       55
 1   to apprise it of its right of redemption and to enable it to

 2   take appropriate steps to protect its property interests before

 3   the redemption period expired.   The OIN proved able, among other

 4   things, to file a detailed answer in March 2005 to Madison

 5   County's state-court petition for foreclosure; to initiate

 6   litigation and seek relief in federal court against each County

 7   prior to the expiration of the respective redemption deadlines;

 8   to redeem properties in a timely fashion when it saw fit to do

 9   so; and to negotiate with the Counties to extend redemption

10   deadlines on mutually agreeable terms.   And the OIN does not

11   deny that it long has had actual knowledge of the Counties'

12   respective tax-enforcement efforts.

13               The OIN argues that it is immaterial that it had

14   actual knowledge of the Counties' tax-enforcement activities,

15   because it asserts that the redemption periods could not even

16   begin to run until the OIN was first served with personal notice

17   of the date of expiration of the redemption period.   We

18   disagree.   "Process is not an end in itself," Holcomb v. Lykens,

19   337 F.3d 217, 224 (2d Cir. 2003) (internal quotation marks

20   omitted), and "due process is not offended by requiring a person

21   with actual, timely knowledge of an event that may affect [the

22   person's] right to exercise due diligence and take necessary

23   steps to preserve that right," Medaglia, 52 F.3d at 455.       The

24   OIN may not rely upon the dictates of procedural due process as



                                      56
 1   a means of forestalling the Counties' foreclosure efforts

 2   because, here, the requirements of the Due Process Clause --

 3   notice and an opportunity to respond -- were plainly fulfilled.

 4              The OIN has thus failed to establish any genuine

 5   dispute as to the fact that it received notice sufficient to

 6   "'apprise [it] of the pendency of the action and afford [it] an

 7   opportunity to present [its] objections.'"    Jones, 547 U.S. at

 8   226 (quoting Mullane, 339 U.S. at 314); see also NYCTL 1998-2

 9   Trust v. Avila, 29 A.D.3d 965, 966, 815 N.Y.S.2d 725, 727 (2d

10   Dep't 2006) (affirming foreclosure where respondent "failed to

11   demonstrate any prejudice to a substantial right as a result of

12   the alleged deficiency in notice").   The Counties are entitled

13   to summary judgment in their favor on the OIN's due-process

14   claims.

15              We have considered the parties' remaining arguments

16   with respect to the OIN's due-process claims, and we conclude

17   that they are either without merit or no longer require

18   consideration in light of our resolution of these appeals.

19              IV.   State Tax Law

20              The final ground for the district court's judgments

21   was its determination that the OIN's properties are exempt from

22   taxation as a matter of New York state law.   See Oneida County

23   I, 432 F. Supp. 2d at 290; Madison County I, 401 F. Supp. 2d at

24   231.   In reaching that conclusion, the court relied upon New



                                      57
 1   York RPTL § 454, which provides in pertinent part that "[t]he

 2   real property in any Indian reservation owned by the Indian

 3   nation, tribe or band occupying them shall be exempt from

 4   taxation," (emphasis added), and upon New York Indian Law

 5   ("NYIL") § 6, which provides that "[n]o taxes shall be assessed,

 6   for any purpose whatever, upon any Indian reservation in this

 7   state, so long as the land of such reservation shall remain the

 8   property of the nation, tribe or band occupying the same"

 9   (emphasis added).

10                These state-law claims fell, at the time, within the

11   district court's supplemental jurisdiction.    See 28 U.S.C.

12   § 1367(a).    Although federal courts may exercise jurisdiction

13   over related state-law claims where an independent basis of

14   subject-matter jurisdiction exists, see, e.g., Monterfiore Med.

15   Ctr. v. Teamsters Local 272, 642 F.3d 321, 332 (2d Cir. 2011),

16   such a court may, for various reasons, nonetheless "decline to

17   exercise supplemental jurisdiction over a claim," 28 U.S.C.

18   § 1367(c).    These reasons include that "the claim raises a novel

19   or complex issue of State law," id. § 1367(c)(1); that "the

20   claim substantially predominates over the claim or claims over

21   which the district court has original jurisdiction,"

22   id. § 1367(c)(2); that "the district court has dismissed all

23   claims over which it has original jurisdiction,"

24   id. § 1367(c)(3); or that "exceptional circumstances" exist such



                                       58
 1   that "there are other compelling reasons for declining

 2   jurisdiction," id. § 1367(c)(4).     "'[T]he issue whether

 3   [supplemental] jurisdiction has been properly assumed is one

 4   which remains open throughout the litigation.'"    Rounseville v.

 5   Zahl, 13 F.3d 625, 631 (2d Cir. 1994) (quoting United Mine

 6   Workers of Am. v. Gibbs, 383 U.S. 715, 727 (1966)); accord Itar-

 7   Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442,

 8   445 (2d Cir. 1998) (noting that the supplemental-jurisdiction

 9   inquiry should be undertaken "at every stage of the litigation"

10   (internal quotation marks omitted)).

11             Although the decision whether to decline to exercise

12   supplemental jurisdiction is "purely discretionary," Carlsbad

13   Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862, 1866 (2009), that

14   discretion is, of course, subject to boundaries.    For example,

15   we have repeatedly said that "if a plaintiff's federal claims

16   are dismissed before trial, 'the state law claims should be

17   dismissed as well.'"   Brzak v. United Nations, 597 F.3d 107,

18   113-14 (2d Cir. 2010) (quoting Cave v. E. Meadow Union Free Sch.

19   Dist., 514 F.3d 240, 250 (2d Cir. 2008)), cert. denied, 131 S.

20   Ct. 151 (2010).

21             In Carnegie-Mellon University v. Cohill, 484 U.S. 343

22   (1988), the Supreme Court enumerated several factors that courts

23   should weigh in considering whether to exercise supplemental

24   jurisdiction -- "the values of judicial economy, convenience,



                                     59
 1   fairness, and comity," id. at 350 -- and suggested that "in the

 2   usual case in which all federal-law claims are eliminated before

 3   trial, the balance of [those] factors . . . will point toward

 4   declining to exercise jurisdiction over the remaining state-law

 5   claims."   Id. at 350 n.7; accord Klein & Co. Futures, Inc. v.

 6   Bd. of Trade, 464 F.3d 255, 262-63 (2d Cir. 2006), cert.

 7   granted, 550 U.S. 956, cert. dismissed, 552 U.S. 1085 (2007);

 8   Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.

 9   2006); Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305-06 (2d

10   Cir. 2003) (collecting cases).   This Court has concluded that

11   declining to exercise jurisdiction after all original-

12   jurisdiction claims have been dismissed is especially

13   appropriate where the pendent claims present novel or unsettled

14   questions of state law.   See, e.g., Cave, 514 F.3d at 250; Klein

15   & Co., 464 F.3d at 263 n.5; Kolari, 455 F.3d at 124 (favoring

16   principle that "state-law claims raising unsettled questions of

17   law" should be dismissed without prejudice under 28 U.S.C.

18   § 1367(c)(3), and collecting cases); Valencia, 316 F.3d at 306-

19   08.

20              Because we have now ordered that the OIN's due process

21   claims be dismissed, there remain no further federal claims

22   supporting the district court's award of injunctive relief.   The

23   OIN argues, however, that we should exercise our discretion in

24   favor of retaining supplemental jurisdiction over the OIN's



                                      60
 1   state-law claims even if all of its federal claims are

 2   dismissed.   In its letter-brief on remand, the OIN urges us to

 3   affirm the district court's judgments on the basis that the

 4   properties in question constitute lands within "any Indian

 5   reservation" for the purposes of RPTL § 454 and NYIL § 6.    They

 6   rely upon the recent case of Cayuga Indian Nation of New York v.

 7   Gould, 14 N.Y.3d 614, 930 N.E.2d 233, 904 N.Y.S.2d 312 (2010),

 8   in which the New York Court of Appeals concluded that fee-title

 9   lands purchased by the Cayuga Indian Nation fell within the

10   definition of "qualified reservation" for the purposes of two

11   New York cigarette-sales-tax statutes, N.Y. Tax Law §§ 470(16)

12   and 471-e.   See Gould, 14 N.Y.3d at 635-46.   The New York Court

13   of Appeals decided that "when the Legislature used the term

14   'reservation' in Tax Law § 470(16)(a), it intended to refer to

15   any reservation recognized by the United States government."

16   Id. at 637; see also id. at 638 ("[T]he 'qualified reservation'

17   question distills to whether the convenience store parcels are

18   viewed as reservation property under federal law.").   The Court

19   then determined that "the United States government continues to

20   recognize the existence of a Cayuga reservation in New York,"

21   id. at 640, and observed that the Supreme Court's decision in

22   Sherrill III "d[id] not establish that the convenience stores

23   are not located on a reservation," id. at 643.    The OIN now

24   argues that by virtue of the Court of Appeals' decision in



                                     61
 1   Gould, the OIN's properties would also necessarily constitute

 2   lands on "any Indian reservation" for the purposes of RPTL § 454

 3   or NYIL § 6.

 4             We do not think that Gould settled the open questions

 5   presented by the OIN's remaining state-law claims.   Indeed, in

 6   Gould itself, the majority expressly reserved the question

 7   whether fee-title lands purchased by Indian tribes on the open

 8   market would count as "reservation" land for the purposes of

 9   RPTL § 454 and NYIL § 6.   See id. at 646 (explaining that "terms

10   found in Tax Law § 470(16)(a) will not necessarily be accorded

11   the same meaning when they appear in other statutory contexts,"

12   expressly including NYIL § 6 and RPTL § 454).   The Court of

13   Appeals set forth various reasons why the meaning of the term

14   "reservation" could be different under other state statutes.

15   See id. (noting, inter alia, that Tax Law § 470(16)(a) was

16   explicitly patterned after a federal statute; that the state

17   statute was enacted after the Supreme Court's decision in

18   Sherrill III; and that its statutory structure reflected a

19   distinction between an Indian nation's exercise of "governmental

20   power" and the "reservation status" of its land).    We therefore

21   cannot say with any certainty or authority how the Court of

22   Appeals would interpret NYIL § 6 or RPTL § 454.

23             We think that at this stage of the litigation, several

24   grounds enumerated by section 1367(c) for declining to exercise



                                     62
 1   supplemental jurisdiction are implicated.   First, the OIN's

 2   declaratory claims under NYIL § 6 and RPTL § 454 raise "novel

 3   [and] complex issue[s] of State law."25   28 U.S.C. § 1367(c)(1).

 4   As the Supreme Court has warned, "[a] federal tribunal risks

 5   friction-generating error when it endeavors to construe a novel

 6   state Act not yet reviewed by the State's highest court."

 7   Arizonans for Official English, 520 U.S. at 79; see also Rivkin

 8   v. Century 21 Teran Realty LLC, 494 F.3d 99, 103-04 (2d Cir.

 9   2007).

10             Second, almost all of the OIN's federal claims -- with

11   just one narrow exception26 -- have now been dismissed.   Cf. 28

          25
            The OIN and the Counties appear to agree that the term
     "Indian reservation," as used within NYIL § 6 and RPTL § 454,
     should be defined by reference to federal law. See, e.g., OIN
     Br. at 86 (arguing that the state exemptions are "really issues
     of federal reservation status"); Counties' Reply Ltr.-Br. at 5
     (arguing that the New York Court of Appeals would likely "look[]
     to federal law to resolve the reservation issue"). The district
     court also appeared to assume, in the course of interpreting
     those state statutes, that the existence vel non of an "Indian
     reservation" should be defined by federal law. See Oneida County
     I, 432 F. Supp. 2d at 290; Madison County I, 401 F. Supp. 2d at
     231. Although that interpretation of the state statutes may
     ultimately be proven correct, we disagree that it is appropriate
     for us to make such an assumption at this time. It is for the
     state courts, not us, to determine ultimately and definitively
     whether a term used in a state statute possesses an autonomous
     meaning under state law.
          26
            As we explain below, we conclude that the OIN is entitled
     under federal common law to a declaration that it is not liable
     for penalties and interest on taxes that accrued prior to the
     Supreme Court's March 29, 2005 decision in Sherrill III. That
     ruling does not, however, entitle the OIN to restrain the
     Counties from foreclosing on their properties. We do not regard
     our partial affirmance on the issue of penalties and interest as
     material to our analysis as to whether supplemental jurisdiction

                                    63
 1   U.S.C. § 1367(c)(3).   Even if the existence of one narrow

 2   surviving federal claim means that not "all claims over which

 3   [the district court] has original jurisdiction" have been

 4   dismissed, id. (emphasis added), it has nonetheless become clear

 5   that the state-law claims now "substantially predominate[]" in

 6   this litigation, id. § 1367(c)(2).      "Once it appears that a

 7   state claim constitutes the real body of a case, to which the

 8   federal claim is only an appendage, the state claim may fairly

 9   be dismissed."   Gibbs, 383 U.S. at 727; see also, e.g., Dargis

10   v. Sheahan, 526 F.3d 981, 991 (7th Cir. 2008) (survival of one

11   federal due-process claim does not require court to retain

12   jurisdiction over seven state-law claims); Garro v. Connecticut,

13   23 F.3d 734, 737 (2d Cir. 1994) (survival of an "insubstantial

14   federal claim" does not require that jurisdiction be retained

15   over state-law claim).

16               To be sure, the fact that one or more of the grounds

17   for declining to exercise supplemental jurisdiction set forth in

18   section 1367(c) applies does not mean that dismissal is

19   mandated.   See 28 U.S.C. § 1367(c) (providing that "[t]he

20   district courts may decline to exercise supplemental

21   jurisdiction" (emphasis added)).      For this reason, we have said

22   that "where at least one of the subsection 1367(c) factors is

23   applicable," the court should not decline jurisdiction "unless


     may be exercised under section 1367(c).


                                      64
 1   it also determines that [exercising supplemental jurisdiction]

 2   would not promote the values . . . [of] economy, convenience,

 3   fairness, and comity."   Jones v. Ford Motor Credit Co., 358 F.3d

 4   205, 214 (2d Cir. 2004) (citation omitted); see also Itar-Tass

 5   Russian News Agency, 140 F.3d at 446.

 6              Here, though, we conclude -- in light of the

 7   "circumstances of the particular case, the nature of the state

 8   law claims, the character of the governing state law, and the

 9   relationship between the state and federal claims," City of

10   Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997)

11   (citing Cohill, 484 U.S. at 350) -- that the proper course is to

12   decline to exercise jurisdiction over the OIN's supplemental

13   state-law claims.   Certification to the New York Court of

14   Appeals might provide an alternate method for resolving these

15   claims.   See 2d Cir. Local R. 27.2; N.Y. Comp. Codes & Regs.

16   tit. 22, § 500.27(a) (2008).   However, under these

17   circumstances, we think that it makes more sense for a New York

18   state court to decide the OIN's state-law claims itself based on

19   its understanding of its own law and its own findings of fact,

20   than for us to assist a federal district court to do so

21   indirectly by certification in a case that no longer presents

22   any federal claims.   It is also significant that there are

23   already pending state-court proceedings in which the OIN appears

24   to have raised the issue of its claimed state tax-law



                                     65
 1   exemptions.27    We therefore vacate the district court's grant of

 2   summary judgment with respect to the OIN's state-law claims, and

 3   remand with instructions to dismiss these claims without

 4   prejudice to re-filing in state court.

 5             We have considered the parties' other arguments as to

 6   the legal status of the OIN's reservation under federal or state

 7   law, and we conclude that they are either without merit or they

 8   are no longer necessary to decide in light of our resolution of

 9   these appeals.    And because no claims remain in support of the

10   district court's injunctions restraining the Counties from

11   foreclosing on OIN-owned property, nor has the OIN shown that

12   injunctive relief is warranted in any other respect, we vacate

13   those injunctions in their entirety.

14             V.     Ancillary Matters

15   A.   Penalties and Interest

16             In each of the parallel lawsuits, the district court

17   ruled that by virtue of the OIN's tribal sovereign immunity from

18   suit, the OIN was not liable to pay any penalties or interest on
          27
            In addition to the pending foreclosure proceedings
     involving Madison County, the OIN has also initiated various
     declaratory proceedings in state court under RPTL Article 7 or
     CPLR Article 78, against Madison County and others, seeking a
     ruling that its property is exempt from taxation as a matter of
     state law. It appears that the OIN sought to discontinue that
     proceeding in preference to this federal lawsuit, but that
     request was denied. See Oneida Indian Nation of N.Y. v. Pifer,
     43 A.D.3d 579, 840 N.Y.S.2d 672 (3d Dep't 2007) (affirming
     trial court's denial of OIN's motion to discontinue lawsuit
     without prejudice). It is not clear to us what the status of
     that proceeding is at this time.


                                          66
 1   back taxes, and it entered injunctive relief accordingly.      See

 2   Oneida County II, slip op. at 2; Madison County I, 401 F. Supp.

 3   2d at 230.    But, in light of the OIN's intervening waiver of

 4   immunity, we can no longer sustain the district court's

 5   injunction restraining the Counties from collecting penalties

 6   and interest on the basis of the OIN's tribal sovereign immunity

 7   from suit.

 8                The OIN maintains, however, that there is an

 9   independent basis for restraining the Counties from assessing

10   and collecting penalties and interest on back taxes, at least

11   for the period of time prior to the Supreme Court's decision in

12   Sherrill III issued on March 29, 2005.     It contends that it

13   would be inequitable to subject it to liability for penalties

14   and interest for a period of time during which the decisional

15   law -- as reflected, inter alia, by this Court's decision in

16   Sherrill II -- held that the OIN was not liable to pay property

17   taxes at all.

18                The procedural history with respect to the issue of

19   penalties and interest is somewhat convoluted.    In seeking

20   summary judgment in the Madison County litigation, the OIN

21   argued that the Counties should be prevented from collecting

22   penalties and interest on two grounds: (1) reasons of equity (as

23   to the pre-Sherrill III period only), and (2) tribal sovereign

24   immunity from suit (as to all periods).    In its opposing



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 1   filings, Madison County did not appear to respond to either

 2   argument.   The district court, ruling in the OIN's favor,

 3   concluded that Madison County had acquiesced to the OIN's

 4   argument that it was not liable to pay penalties or interest at

 5   all.   See Madison County I, 401 F. Supp. 2d at 230.

 6               In the Oneida County suit, by contrast, the issue of

 7   penalties and interest was contested.   In seeking summary

 8   judgment, the OIN argued -- just as it had in Madison County --

 9   that penalties and interest were barred both by principles of

10   equity (as to the pre-Sherrill III period only) and by the OIN's

11   tribal sovereign immunity from suit (as to all periods).     Oneida

12   County responded by arguing that the OIN did not possess tribal

13   immunity from liability for penalties and interest, but it did

14   not squarely address the OIN's separate, equity-based argument.

15   The district court initially ruled in the OIN's favor on the

16   equity theory only, deciding that "[i]t would be inequitable to

17   permit Oneida County to assess interest and penalties for non-

18   payment of taxes during a time when it was the law that the

19   lands were not taxable."   Oneida County I, 432 F. Supp. 2d at

20   291; see also Madison County II, 235 F.R.D. at 560 n.1 (noting

21   contrast between district court's rulings on penalties and

22   interest in the Oneida County and Madison County lawsuits).

23               The OIN then filed a post-judgment motion in the

24   Oneida County litigation pursuant to Fed. R. Civ. P. 59



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 1   requesting that the district court amend its judgment so as to

 2   note that penalties and interest were barred not merely for the

 3   pre-Sherrill III period, but for all periods, by virtue of the

 4   OIN's tribal sovereign immunity from suit.    The district court

 5   granted that motion and issued an amended judgment restraining

 6   Oneida County from assessing or collecting penalties and

 7   interest on unpaid taxes generally.    See Oneida County II, slip

 8   op. at 2.   Ultimately, then, the district court's decisions in

 9   both Madison County and Oneida County on the matter of penalties

10   and interest rested on the same ground: tribal sovereign

11   immunity from suit.

12               The OIN's positions on appeal with respect to this

13   issue are difficult to reconcile.     First, the OIN argued that

14   because the Counties did not adequately brief the question of

15   penalties and interest in their opening brief, the Counties

16   should be held to have forfeited their defense on that issue.

17   See OIN Br. at 58-59.   Later, however, the OIN represented to

18   the Supreme Court that "the parties continue to dispute . . .

19   whether penalties and interest may be imposed for periods in

20   which the lands were held to be tax-exempt," and that the issue

21   "remain[s] to be litigated."   OIN December 2 Letter at 2.   Now,

22   on remand, the OIN has reverted to its previous position,

23   asserting that because the Counties did not challenge on appeal

24   any of the district court's rulings with respect to penalties



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 1   and interest, they forfeited their right to contest the OIN's

 2   entitlement to relief from penalties and interest, including

 3   relief on equitable grounds as to the pre-Sherrill III period

 4   alone.

 5             Despite this apparent inconsistency, we agree with the

 6   OIN that the Counties have forfeited their arguments in

 7   opposition to the OIN's argument that it is not liable for

 8   interest or penalties on taxes or related assessments that

 9   accrued prior to March 29, 2005.     In the summary-judgment

10   proceedings before the district court, neither County actively

11   opposed the OIN's argument that it was entitled on grounds of

12   equity to a declaration that it did not owe interest or

13   penalties for the pre-Sherrill III period.     To the contrary,

14   Oneida County's summary-judgment briefing appeared implicitly to

15   concede the point, even as it disputed the OIN's arguments with

16   respect to the post-March 29, 2005 period.    The OIN also

17   correctly observes that in the Counties' opening brief on

18   appeal, they barely mentioned the issue of penalties and

19   interest, only arguing in a footnote that the Supreme Court's

20   decision in Sherrill III "is fairly read to authorize local

21   taxing authorities to collect penalties and interest from OIN."

22   Counties' Br. at 52 n.16.   Even after the OIN argued in its

23   responsive brief that "[e]quity also bars imposition of

24   penalties and interest for nonpayment of taxes prior to the



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 1   Supreme Court's City of Sherrill decision," OIN Br. at 25; see

 2   also id. at 62-66, the Counties did not directly respond to that

 3   argument, but instead asserted only that the amount of interest

 4   and penalties imposed was reasonable, see Counties' Reply Br. at

 5   26.

 6             Of course, the district court's rulings that the OIN

 7   was not liable to pay penalties or interest ultimately rested on

 8   the basis of tribal sovereign immunity from suit, not upon

 9   principles of equity.   Based upon the district court's initial

10   ruling in Oneida County I, however, we understand the district

11   court also to have credited the OIN's argument that it was

12   entitled to be free from paying penalties or interest as to the

13   pre-March 29, 2005 period on equitable grounds.   See Oneida

14   County I, 432 F. Supp. 2d at 292 ("Equity precludes the

15   imposition of penalties and interest for taxes unpaid during a

16   time when the properties were tax-exempt under the law."); id.

17   at 290-91 (similar).    That ruling was sufficient to put the

18   Counties on notice of the OIN's equitable argument.

19             We conclude that the OIN is entitled to a declaration

20   that it is not liable to pay penalties or interest on taxes or

21   related assessments that accrued prior to the Supreme Court's

22   decision in Sherrill III.    Because the OIN has not shown that a

23   permanent injunction is necessary to protect its interests in

24   this respect, we also conclude that this declaratory relief



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 1   should suffice.   Cf. Wooley v. Maynard, 430 U.S. 705, 711 (1977)

 2   ("[A] district court can generally protect the interests of a

 3   federal plaintiff by entering a declaratory judgment, and

 4   therefore the stronger injunctive medicine will be unnecessary."

 5   (internal quotation marks omitted)).

 6   B.   Abstention

 7             When this case was originally before us on appeal, the

 8   Counties argued that the district court erred as a matter of law

 9   by refusing to abstain from jurisdiction on the grounds that

10   federal litigation would impermissibly interfere with state tax

11   administration.   The Counties relied upon 28 U.S.C. § 1341,

12   which provides that "[t]he district courts shall not enjoin,

13   suspend or restrain the assessment, levy or collection of any

14   tax under State law where a plain, speedy and efficient remedy

15   may be had in the courts of such State."   In our original

16   decision, we rejected this argument, concluding that the Supreme

17   Court has "created an exception to the general rule barring

18   federal interference with state tax administration" for suits

19   brought by Indian tribes that the United States could have

20   brought on a tribe's behalf as trustee.    Oneida I, 605 F.3d at

21   160 (internal quotation marks omitted) (citing Moe v.

22   Confederated Salish & Kootenai Tribes of Flathead Reservation,

23   425 U.S. 463, 474-75 (1976)).

24             In their petition for certiorari to the Supreme Court,



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 1   the Counties did not challenge our ruling with respect to the

 2   matter of abstention.    Nor do they address abstention in their

 3   letter-briefing on remand.    But because our decision in Oneida I

 4   has been vacated, and because "a district court's determination

 5   not to abstain . . . implicates the court's subject matter

 6   jurisdiction," Hartford Courant Co. v. Pellegrino, 380 F.3d 83,

 7   90 (2d Cir. 2004), we raise the issue sua sponte and affirm the

 8   district court's decision not to abstain for substantially the

 9   same reasons outlined in our prior panel decision.   See Oneida

10   I, 605 F.3d at 160-61.

11   C.      Stockbridge's Motions to Intervene

12               On appeal, the putative intervenor, Stockbridge,

13   argues (1) that the district court erred in the Oneida County

14   lawsuit by denying its Rule 24(a) motion to intervene as of

15   right, and (2) that the district court erred in the Madison

16   County lawsuit by refusing to grant leave to Madison County to

17   file a Rule 19 motion to dismiss for failure to join Stockbridge

18   as a party.    In its reply letter-brief, Stockbridge asserts that

19   "should this Court conclude that the issue of sovereign immunity

20   is now moot . . . and proceed to address the question whether

21   the [OIN's] land is tax-exempt under New York law, it should

22   reconsider its ruling that Stockbridge does not have an interest

23   in the subject of this litigation."    Stockbridge Reply Ltr.-Br.

24   at 4.



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 1               We need not reconsider our ruling in Oneida I.   Here,

 2   as in Oneida I, the manner in which we resolve these appeals

 3   does not bear upon the question of the disputed boundaries

 4   between the OIN's and Stockbridge's respective land claims.      See

 5   Oneida I, 605 F.3d at 163.   Indeed, insofar as our resolution of

 6   these appeals does not reach "the question whether the [OIN's]

 7   land is tax-exempt under New York law," Stockbridge Reply Ltr.-

 8   Br. at 4, but dismisses those claims without prejudice instead,

 9   it would appear that Stockbridge concedes that it is unnecessary

10   for us to revisit our prior ruling at this time.

11               Therefore, for substantially the same reasons stated

12   in our decision in Oneida I, see id. at 161-63 & n.9, we affirm

13   the district court's denial of Stockbridge's Rule 24(a)

14   intervention motion in Oneida County and its denial of Madison

15   County's motion to file a Rule 19 motion to dismiss in Madison

16   County.

17   D.   Disestablishment or Diminishment

18               Finally, we address the Counties' appeals from the

19   district court's declarations that the ancient Oneida Nation's

20   reservation was not disestablished by the 1838 Treaty of Buffalo

21   Creek.    See Oneida County I, 432 F. Supp. 2d at 292 (decreeing

22   that "[the OIN's] reservation was not disestablished"); Madison

23   County I, 401 F. Supp. 2d at 233 (same).   In so ruling, the




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 1   district court effectively dismissed the Counties' counterclaims

 2   seeking a declaration to the opposite effect.

 3              When this case was previously before us on appeal, we

 4   declined to reach the Counties' argument that the OIN's

 5   reservation had been disestablished, in light of our conclusion

 6   that foreclosure was barred in any event by virtue of the OIN's

 7   tribal sovereign immunity from suit.   Oneida I, 605 F.3d at 157

 8   n.6.   We nonetheless observed that the Supreme Court in Sherrill

 9   III had "explicitly declined to resolve the question of whether

10   the Oneida reservation had been 'disestablished.'"   Id.   We

11   concluded that "[o]ur prior holding on this question -- that

12   'the Oneidas' reservation was not disestablished' -- therefore

13   remains the controlling law of this circuit."   Id. (citation

14   omitted) (quoting Sherrill II, 337 F.3d at 167).

15              Following our decision in Oneida I, the Counties

16   petitioned for a writ of certiorari to review, inter alia, the

17   question "whether the ancient Oneida reservation in New York was

18   disestablished or diminished."   Counties' Cert. Petition at i.

19   Because the Supreme Court vacated our judgment in light of the

20   OIN's professed waiver of immunity and remanded for further

21   proceedings, however, the Court did not have occasion to rule

22   upon the disestablishment question.    Nonetheless, relying upon

23   the Supreme Court's intervening grant of certiorari, the




                                      75
 1   Counties urge us to revisit our decision in Sherrill II that the

 2   Oneidas' reservation was not disestablished.

 3             We decline the Counties' invitation.    "This panel is

 4   bound by the decisions of prior panels until such time as they

 5   are overruled either by an en banc panel of our Court or by the

 6   Supreme Court."   In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010)

 7   (internal quotation marks omitted).    It remains the law of this

 8   Circuit that "the Oneidas' reservation was not disestablished,"

 9   Sherrill II, 337 F.3d at 167.   As we previously observed in

10   Oneida I, the Supreme Court's decision in Sherrill III did not

11   upset that determination.   See Oneida I, 605 F.3d at 157 n.6.

12             Nor do we think that the fact that the Supreme Court

13   granted certiorari to review our decision in Oneida I renders

14   our decision in Sherrill II without legal effect.    Our Court has

15   spoken on the question of disestablishment.    We therefore affirm

16   the dismissal of the Counties' counterclaims.

17                               CONCLUSION

18             For the foregoing reasons:

19             1.   We vacate the district court's judgments to the

20   extent that they granted summary judgment to the OIN on its

21   now-abandoned claims related to: (1) the doctrine of tribal

22   sovereign immunity from suit and (2) the Nonintercourse Act.

23   We remand with instructions to the district court to dismiss

24   those two claims with prejudice.     Moreover, as the OIN has



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 1   suggested, the amended judgments shall reflect this Court's

 2   understanding that the OIN's waiver of its tribal sovereign

 3   immunity from suit is "irrevocable."    OIN December 2 Letter at

 4   3.

 5             2.   We reverse the district court's judgments to the

 6   extent that they granted summary judgment on the OIN's claims

 7   that the Counties' redemption notices failed to comport with

 8   federal or state due-process requirements.    We remand with

 9   instructions to enter judgment in favor of the Counties on

10   these claims and to dismiss them with prejudice.

11             3.   We vacate the district court's judgments to the

12   extent that they granted summary judgment to the OIN on its

13   claims that it is entitled under state law to exemptions from

14   state and local property taxes.     We remand with instructions to

15   the district court to decline to exercise supplemental

16   jurisdiction over these claims and to dismiss them without

17   prejudice to their being brought in state court.

18             4.   We affirm, but solely as to property taxes and

19   related assessments accruing prior to March 29, 2005, the

20   district court's ruling that the OIN is not liable for payment

21   of penalties or interest, and we conclude that the OIN is

22   entitled to a declaration to that effect.

23             5.   We affirm the district court's decisions:

24   declining to abstain from this litigation under 28 U.S.C.



                                    77
 1   § 1341; denying Stockbridge's motions to intervene and denying

 2   Madison County's motion for leave to file a Rule 19 motion to

 3   dismiss; and dismissing each County's declaratory

 4   counterclaims.

 5             6.     Because no claims remain that would entitle the

 6   OIN to injunctive relief barring the Counties from carrying out

 7   their respective tax-enforcement procedures, and because the

 8   OIN has not shown that injunctive relief is warranted in any

 9   other respect, we vacate the district court's injunctions in

10   their entirety.

11             7.     We direct the district court to enter an amended

12   judgment in each lawsuit reflecting these rulings.

13             Costs of these proceedings shall be borne by the OIN.




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