19-0032 Cayuga Indian Nation of New York v. Seneca County

In the United States Court of Appeals For the Second Circuit ______________

August Term, 2019

(Argued: January 7, 2020 Decided: October 23, 2020)

Docket No. 19-0032 ______________

CAYUGA INDIAN NATION OF NEW YORK,

Plaintiff–Counter-Defendant–Appellee,

–v.–

SENECA COUNTY, NEW YORK,

Defendant–Counter-Claimant–Appellant.

______________

B e f o r e:

KEARSE, CALABRESI, and CARNEY, Circuit Judges. ______________

Seneca County, New York, appeals from a December 11, 2018 decision of the United States District Court for the Western District of New York (Siragusa, J.), granting summary judgment in favor of the Cayuga Indian Nation of New York and permanently enjoining the County from foreclosing on the Cayuga Indian Nation’s real property for nonpayment of taxes. We agree with the District Court that tribal sovereign immunity from suit bars the County from pursuing tax enforcement actions under Article 11 of the New York Real Property Tax Law against the Cayuga Indian Nation. Contrary to the County’s view, its foreclosure proceedings are not permitted by the traditional common law exception to sovereign immunity that covers certain actions related to immovable property. We also reject the County’s reading of City of Sherrill v. Oneida Indian Nation of New York,

(2005), as abrogating a tribe’s immunity from suit. Accordingly, we AFFIRM the judgment of the District Court.

AFFIRMED. ______________

DAVID W. DEBRUIN (Zachary C. Schauf, Caroline C. Cease, on the brief), Jenner & Block LLP, Washington, DC; Daniel J. French, Lee Alcott (on the brief), Barclay Damon, LLP, Syracuse, NY, for Plaintiff–Counter-Defendant– Appellee Cayuga Indian Nation of New York.

LOUIS P. DILORENZO (Brian Laudadio, Mary P. Moore, on the brief), Bond, Schoeneck & King, PLLC, New York & Rochester, NY, for Defendant–Counter-Claimant– Appellant Seneca County, New York. ______________

CARNEY, Circuit Judge:

This appeal poses the question whether a federally recognized Indian tribe’s

sovereign immunity from suit prevents a county in New York State from foreclosing on

tribal properties within the county’s borders for the nonpayment of real estate taxes.

In 2007, the Cayuga Indian Nation of New York (the “Cayuga Nation,” the

“Cayugas,” or the “Tribe”) purchased several parcels of land located in Seneca County,

New York (the “Properties”). After the Cayugas refused to pay real property taxes

levied by Seneca County (the “County”) on the Properties, the County in 2010 initiated

foreclosure proceedings (the “Foreclosure Actions”) under Article 11 of the New York

Real Property Tax Law (“Article 11”). In response, the Cayugas sued the County in

federal district court, asserting (among other claims) that the Foreclosure Actions were

2 barred by the doctrine of tribal sovereign immunity from suit. The United States District

Court for the Western District of New York (Siragusa, J.) agreed with the Cayuga

Nation, ruling in its favor on the parties’ cross-motions for summary judgment and

enjoining the County from proceeding with the Foreclosure Actions.

In this appeal, Seneca County argues in principal part that the Foreclosure

Actions may proceed under an “immovable-property exception” to tribal sovereign

immunity from suit. At common law, the County asserts, a sovereign (e.g., France)

would not be immune from legal actions that challenged the sovereign’s rights to real

(i.e., immovable) property located outside that sovereign’s own territory (e.g., in the

United States). The County urges us to recognize an analogous exception here to the

general rule of tribal sovereign immunity from suit, reasoning that the scope of the

immunity to which indigenous tribes are entitled cannot exceed that enjoyed at

common law by other sovereigns. On this basis, Seneca County contends, the

Foreclosure Actions are permitted.

We need not reckon with the merits of that position, however, because we

conclude that, even were we to recognize the County’s proposed exception to

immunity, the Foreclosure Actions lie outside its bounds. As we explain below, the

Foreclosure Actions do not seek to establish Seneca County’s rights in real estate such as

are the animating concern of the immovable-property exception. Rather, because in the

Foreclosure Actions the County seeks to seize the Properties as a remedy for the

nonpayment of taxes, the proceedings are best seen as the functional equivalent of an

action to execute on a money judgment. Viewed accordingly, they lie well within the

categories of suits from which sovereigns were traditionally immune under the

common law, and the existence or not of an immovable-property exception to tribal

sovereign immunity is of no moment.

3 We also reject the County’s interpretation of City of Sherrill v. Oneida Indian

Nation of New York,

(2005) (“Sherrill”), as wholesale authorization for state

tax foreclosure actions against tribes. We have previously considered and discarded

that reading of Sherrill in two decisions: Oneida Indian Nation of New York v. Madison

County,

(2d Cir. 2010) (“Oneida I”), vacated and remanded sub nom. Madison

County v. Oneida Indian Nation of New York,

(2011), and Cayuga Indian Nation

of New York v. Seneca County,

(2d Cir. 2014) (“Cayuga I”) (preliminary

injunction decision). While, as a technical matter, neither opinion’s interpretation of

Sherrill binds our ruling here, we agree with the reasoning consistently adopted in those

two decisions. We therefore finally put to rest the misguided claim that Sherrill

abrogated a tribe’s sovereign immunity from suit. Read properly, it merely narrowed

the scope of tribal immunity from certain forms of state regulation.

For these reasons, and as set forth more fully below, we AFFIRM the judgment of

the District Court.

BACKGROUND

The factual background relevant to this appeal is undisputed and was

established by the parties in their summary judgment submissions.

The Cayuga Nation is an Indian tribe recognized by the United States

government. In 2007, the Cayugas purchased the Properties, comprising five parcels of

land located within the boundaries of Seneca County, in upstate New York. 1 The Tribe

refused to pay the related real property taxes levied by the County, however, taking the

position that the Properties lay in “Indian country” within the meaning of federal

1During the state foreclosure proceedings, the five parcels that constitute the Properties were reconfigured as four separate parcels.

4 law. 2 App’x 13. 3 In due course, the Cayugas’ unpaid tax bill resulted in the imposition

of liens against the Properties by operation of Article 11 of the New York Real Property

Tax Law, the state statutory scheme governing the County’s collection of real property

taxes. See Oneida Indian Nation of N.Y. v. Madison Cty.,

(2d Cir. 2011)

(“Oneida II”) (reviewing “the default tax-enforcement procedure established by Article

11”). Then, in October 2010, Seneca County moved under Article 11 to foreclose on the

liens and seize the underlying Properties in satisfaction of the Cayugas’ tax debt.

As noted above, the Cayugas proceeded to sue the County in federal district

court, seeking to enjoin the foreclosure proceedings. The Tribe maintained that New

York law exempts their lands from state and local taxation, and that the Foreclosure

Actions are also barred by tribal sovereign immunity and the federal Nonintercourse

Act,

. 4

2 As we have explained elsewhere,

“Indian country” is . . . statutorily defined as “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights- of-way running through the same.”

Citizens Against Casino Gambling in Erie Cty. v. Chaudhuri,

(2d Cir. 2015) (quoting

).

3Unless otherwise noted, this Opinion omits all alterations, citations, footnotes, and internal quotation marks in quoted text.

4The Nonintercourse Act (the “Act”) generally “bars sales of tribal land without the acquiescence of the Federal Government.” Sherrill,

. In connection with their claim under the Act, the Cayugas assert that the Properties lie within the historical boundaries of a 64,000-acre federal reservation that the Treaty of Canandaigua established in 1794 for their

5 In August 2012, the District Court entered a preliminary injunction halting the

Foreclosure Proceedings based entirely on the Tribe’s claim of sovereign immunity

from suit. In doing so, it relied heavily on our analysis in Oneida I, where we held that

“the long-standing doctrine of tribal sovereign immunity” precluded New York

counties from pursuing “[t]he remedy of foreclosure” against tribes that refuse to pay

property taxes.

. The Supreme Court vacated our Oneida I decision when,

after the Court granted certiorari, the tribe expressly waived its sovereign immunity in

that proceeding. See Madison Cty. v. Oneida Indian Nation of New York,

. 5

Nonetheless, the District Court found persuasive the reasoning we had adopted in the

vacated decision, concluding on grounds similar to those we cited there that the

Foreclosure Actions were very likely barred by the Tribe’s sovereign immunity from

suit, justifying an award of preliminary relief to the Tribe.

The County appealed, invoking our interlocutory jurisdiction. In July 2014, a

panel of this Circuit affirmed the District Court’s order. See Cayuga I,

. In

a brief opinion, we declined to express a view as to the substantive import of the

tribe. Although in 1795 and 1807 they sold most of this land to the State of New York, the Cayugas allege in their complaint that the absence of Congressional approval for the sales rendered the transactions void and violative of the Nonintercourse Act, a position that, the Cayugas argue in a recent submission to the Court, is supported by the Supreme Court’s decision in McGirt v. Oklahoma,

(2020). For its part, Seneca County disputes that the Treaty of Canandaigua established a reservation for the Cayugas in the first place.

5 While review of Oneida I was pending in the Supreme Court, the Oneida Indian Nation “passed a tribal declaration and ordinance waiving its sovereign immunity to enforcement of real property taxation through foreclosure by state, county and local governments within and throughout the United States.” Madison Cty. v. Oneida Indian Nation of N.Y.,

. In light of this “new factual development,” the Supreme Court vacated our judgment in a brief order and remanded for further proceedings.

On remand, we found that the tribe’s express waiver compelled the conclusion that sovereign immunity no longer barred the counties’ tax enforcement actions; the appeal was then resolved on other grounds. See Oneida II,

.

6 Supreme Court’s vacatur of Oneida I. See id. at 220. Instead, based on an independent

review of the relevant law, our per curiam opinion simply reaffirmed Oneida I’s

conclusion that federally recognized tribes are immune from local tax foreclosure

actions, see id. at 220-21, and therefore that the District Court did not abuse its discretion

by entering preliminary injunctive relief.

Following remand, the parties cross-moved for summary judgment, and on

December 11, 2018, the District Court ruled in favor of the Cayugas. Relying principally

on its earlier preliminary injunction ruling and our interlocutory decision in Cayuga I,

the District Court concluded that tribal sovereign immunity from suit prevented Seneca

County from foreclosing on the Properties. It therefore granted the declaratory and

permanent injunctive relief that the Cayugas requested and dismissed their remaining

claims as moot. The County then filed this timely appeal.

DISCUSSION

We review de novo a district court’s grant of summary judgment, “construing the

evidence in the light most favorable to the non-moving party.” CIT Bank N.A. v.

Schiffman,

, 532 (2d Cir. 2020). A district court may award summary

judgment “only if the court concludes that the case presents no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.”

Morgan v. Dzurenda,

(2d Cir. 2020).

Seneca County advances two main contentions on appeal. First, it asserts that an

“immovable-property exception” to sovereign immunity permits the Foreclosure

Actions. Generally speaking, this exception refers to a common law doctrine that

curtails sovereign immunity in legal actions contesting a sovereign’s rights or interests

in real property located within another sovereign’s territory. Second, the County urges

7 that the Supreme Court’s decision in Sherrill ended tribal sovereign immunity

altogether in tax foreclosure actions.

Below, we consider these arguments in turn. At the threshold, however, we

briefly address whether Cayuga I controls this appeal—a position pressed by the

Cayugas, who insist that it does because the County raises in this appeal the very

arguments that we considered and rejected in Cayuga I.

The Cayugas’ view is incorrect. We resolved Cayuga I on interlocutory appeal of

a preliminary injunction, a distinctive procedural posture. We long ago observed that,

“[o]rdinarily, findings of fact and conclusions of law made in a preliminary injunction

proceeding do not preclude reexamination of the merits at a subsequent trial.” Irish

Lesbian & Gay Org. v. Giuliani,

, 644 (2d Cir. 1998). This is because a

preliminary injunction order is, by its very nature, “tentative.” Goodheart Clothing Co. v.

Laura Goodman Enters., Inc.,

(2d Cir. 1992). To secure preliminary

injunctive relief, a plaintiff must show “a likelihood of success on the merits”—it need

not achieve “actual success.” Amoco Prod. Co. v. Vill. of Gambell,

, 546 n.12

(1987) (emphasis added). As we explained in Goodheart Clothing, “[i]t would . . . be

anomalous at least in most cases, and here, to regard the initial [preliminary injunction]

ruling as foreclosing the subsequent, more thorough consideration of the merits that the

preliminary injunction expressly envisions.”

.

Two additional considerations reinforce the correctness of this conclusion. First,

in Cayuga I, we did not explicitly address Seneca County’s immovable-property

argument, and as a general practice, we avoid relying on “implicit holding[s].”

Villanueva v. United States,

(2d Cir. 2018) (citing Webster v. Fall,

(1925)). Second, we think that the Supreme Court’s decision in Upper Skagit

Indian Tribe v. Lundgren,

(2018) (“Upper Skagit”), weighs in favor of

treating the County’s invocation of the immovable-property exception as presenting an

8 as-yet unresolved question of law. In Upper Skagit, which the Supreme Court decided

after we issued our opinion in Cayuga I, neighboring landowners filed an adverse

possession action against the Upper Skagit Tribe, seeking to quiet title to a disputed

strip of land as to which both groups lay claim. Upper Skagit,

. The

Washington State Supreme Court initially ruled against the tribe, but the landowners

later conceded that the state court’s decision rested on an erroneous interpretation of

County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation,

(1992). See Upper Skagit,

. The landowners nevertheless urged the

United States Supreme Court to affirm the state court’s judgment based on the

immovable-property exception to sovereign immunity.

.

The Supreme Court declined to address this proposed alternative ground for

affirmance, choosing instead to direct the state court to consider the immovable-

property exception (presumably, both its definition and application) in the first

instance. See

At the same time, four of the Justices signaled their willingness to

embrace recognition of such an exception to tribal immunity from suit. In dissent,

Justices Thomas and Alito expressed the view that an immovable-property exception—

which they described as having been “hornbook law almost as long as there have been

hornbooks”—“plainly extends to tribal immunity, as it does to every other form of

sovereign immunity.”

(Thomas, J., dissenting). For their part, Chief Justice

Roberts and Justice Kennedy identified concerns about applying tribal immunity from

suit to “property disputes of this sort,” writing that, “if it turns out that the [immovable-

property exception] does not extend to tribal assertions of rights in non-trust, non-

reservation property, the applicability of sovereign immunity in such circumstances

would . . . need to be addressed in a future case.”

(Roberts, C.J.,

concurring).

9 In light of these considerations, we do not think that our decision in Cayuga I

compels us to affirm the District Court’s judgment. Rather, we do so for the reasons

stated below.

I. The Immovable-Property Exception

As “domestic dependent nations,” federally recognized tribes possess

“the common-law immunity from suit traditionally enjoyed by sovereign powers.”

Michigan v. Bay Mills Indian Cmty.,

(2014). Courts must avoid “carving

out exceptions” to that immunity and should take care not to restrict tribes’ historic

immunity from suit.

; cf. Lewis v. Clarke,

(2017)

(cautioning against “extend[ing] sovereign immunity for tribal employees beyond what

common-law sovereign immunity principles would recognize for either state or federal

employees”). The power to restrict the scope of a tribe’s immunity from suit lies,

instead, with Congress (which is empowered to authorize suits against tribes) and with

the tribes themselves (which may waive their immunity from suit, as occurred in

Oneida II,

). See Bay Mills,

.

Seneca County contends that the common law has long recognized an exception

to state and foreign sovereign immunity in certain cases involving real property. The

County urges us to find an analogous exception to tribal sovereign immunity, warning

that a contrary holding would “confer[] super-sovereign authority to the Cayuga

Nation.” Appellant’s Br. 14.

To resolve this appeal, however, we need not rule on the existence of such an

exception to tribal immunity. This is because, as discussed below, we conclude that the

Foreclosure Actions fall outside the purview of the common law version of the

immovable-property exception. Otherwise said: even if the County is correct that an

immovable-property exception limits tribal sovereign immunity from suit, that

10 exception provides no basis for disturbing the District Court’s judgment and allowing

the Foreclosure Actions to proceed.

American common law has long recognized an “exception to sovereign

immunity for actions to determine rights in immovable property.” Upper Skagit,

(Roberts, C.J., concurring); see also City of New York v. Permanent Mission of

India to the United Nations,

(2d Cir. 2006) (“Permanent Mission of India

I”) (“This principle . . . long predated the restrictive theory of sovereign immunity and

the [Foreign Sovereign Immunities Act].”). This rule—which has developed primarily

in the context of international law and practice—derives from two basic aspects of

sovereign authority. 6 The first is that “property ownership is not an inherently

sovereign function.” Permanent Mission of India to the United Nations v. City of New York,

(2007) (“Permanent Mission of India II”). Thus, when a state acquired

land outside of its own territory, courts traditionally treated that land as if it were

owned by a private individual. See Schooner Exch. v. McFaddon,

(1812) (“A prince, by acquiring private property in a foreign country, may possibly

be considered as subjecting that property to the territorial jurisdiction, he may be

considered as so far laying down the prince, and assuming the character of a private

individual.”).

6As noted in the text of this Opinion, questions regarding the applicability of the immovable- property exception have to date arisen most often in the context of suits against foreign sovereigns. See Upper Skagit,

(Thomas, J., dissenting) (tying the emergence of the exception to international law and practice); see also Restatement (Fourth) of Foreign Relations Law of the United States § 456, reporters’ n.2 (Am. Law Inst. 2018) (collecting cases applying the exception to foreign sovereigns). The Supreme Court has recognized and applied an analogous exception, however, in suits against the states. See Upper Skagit,

(Roberts, J., concurring); see also Georgia v. City of Chattanooga,

(1924).

11 The second is that each state has “a primeval interest in resolving disputes over

use or right to use of real property” located within its own territory. Asociacion de

Reclamantes v. United Mexican States,

(D.C. Cir. 1984) (Scalia, J.). Land

is “indissolubly connected with the territory of a [s]tate,” Upper Skagit,

(Thomas, J., dissenting); the boundaries of a state’s territory, in turn, generally limit the

reach of the state’s sovereign powers, see The Apollon,

(1824)

(“The laws of no nation can justly extend beyond its own territories, except so far as

regards its own citizens.”). A state therefore “cannot safely permit the title to its land to

be determined by a foreign power.” Asociacion de Reclamantes,

(quoting

1 F. Wharton, Conflict of Laws § 278, at 636 (3d ed. 1905)).

In keeping with these principles, courts and other authorities have generally

understood the immovable-property exception as permitting only those lawsuits

against a sovereign that “contest[]” its rights or interests in real property. Restatement

(Second) of Foreign Relations Law of the United States § 68 cmt. d (Am. Law Inst.

1965). 7 Accordingly, the exception has not been thought to eliminate the immunity

defense as to “disputes that arise out of [a foreign sovereign’s] rights in real estate but

do not actually place [those rights] at issue.” Permanent Mission of India I,

. 8 Nor has it been applied when the party who invokes the exception “makes no

7 Different articulations of the immovable-property exception have found favor over the years. Compare Restatement (Second) of Foreign Relations Law § 68(b) (the exception covers “action[s] to obtain possession of or establish a property interest in immovable property located in the territory of the State exercising jurisdiction”), with Permanent Mission of India I,

(the exception covers “disputes directly implicating property interests or rights to possession”). As discussed in the text of this Opinion, however, all of the various articulations of the exception center on actions asserting claims to rights or interests in real property that compete with those of the sovereign.

8In many of these cases, courts looked to the common law immovable-property exception to help them interpret the Foreign Sovereign Immunities Act of 1976 (the “FSIA”),

12 claim to any interest” in a foreign sovereign’s real property and is “not seeking to

establish any rights” in that property. MacArthur Area Citizens Ass’n v. Republic of Peru,

(D.C. Cir. 1987). Instead, the immovable-property exception has

reached only those disputes that require the court to resolve competing claims to a right

or interest in real property. See Restatement (Second) of Foreign Relations Law § 68

cmt. d (describing the exception as covering “actions for the determination of

possession of, or an interest in, immovable or real property located in the territory of a

state exercising jurisdiction”).

Thus, for example, the exception plainly applies to, and allows, a state’s eminent-

domain proceedings against a foreign state’s property located in the state exercising

eminent domain. Permanent Mission of India II,

. In such proceedings, the

parties assert conflicting rights to land. See Chattanooga,

(describing the

state’s right of eminent domain as “superior to property rights” and as “extend[ing] to

all property with the jurisdiction of the State”); see also Kohl v. United States,

(1875) (making a similar point). The exception has also been held to cover and

permit lawsuits seeking to establish “the validity of [a city’s] tax liens on property held

by [a foreign] sovereign.” Permanent Mission of India II,

. In such cases, an

interest in property—i.e., the existence of a valid lien on real estate—is in dispute.

In contrast, courts have concluded that the immovable-property exception does

not extend to lawsuits against a foreign sovereign that: (1) arise out of a slip-and-fall

injury occurring on the foreign sovereign’s land,

; (2) seek damages and

injunctive relief on the theory that building renovations on the foreign sovereign’s

et seq., the statute that now “governs federal courts’ jurisdiction in lawsuits against foreign sovereigns.” Permanent Mission of India II,

. This is because, in enacting the FSIA, Congress intended “to codify the pre-existing real property exception to sovereign immunity recognized by international practice.”

; see also infra p. 16-17.

13 property depreciated the value of neighboring lands, MacArthur Area Citizens Ass’n,

; or (3) seek monetary compensation from the foreign sovereign in

connection with the expropriation of real property located in the United States,

Asociacion de Reclamantes,

. Those types of disputes may “arise

out of . . . rights in real estate,” but they all fall short of “actually plac[ing] [those rights]

at issue.” Permanent Mission of India I,

.

Turning back to Seneca County, we conclude that the Foreclosure Actions fall

outside the ambit of the common law exception to sovereign immunity for matters

involving immovable property. Although a foreclosure action certainly involves real

property, the Cayuga Nation observes—and we are convinced—that these “tax

enforcement actions are—fundamentally—about money, not property.” Appellee’s Br.

32. In commencing the Foreclosure Actions under Article 11, Seneca County does not

seek a court determination that its tax liens against the Properties are valid. See Oneida

II,

(observing that, under Article 11, “unpaid taxes and other

assessments automatically become a lien against the property” after a certain period of

time has passed). Nor does the County challenge the legitimacy of the Cayugas’ existing

rights or interests in those Properties. Rather, Seneca County invokes its tax-collection

powers to seize the Properties under Article 11 as satisfaction for the Cayugas’ financial

debt for accrued, unpaid property taxes.

True, if Seneca County prevailed in the Foreclosure Actions, it would acquire

title to the Properties. See Kennedy v. Mossafa,

(2003) (explaining that,

under Article 11, “the court enters a judgment directing that title pass in fee simple

absolute to the county”). That transfer of title, however, would simply serve as a

remedy—a way to satisfy the Tribe’s tax debt. Thus, contrary to the County’s urging, we

do not view the Foreclosure Actions as “actions to determine rights in immovable

property.” Upper Skagit,

(Roberts, C.J., concurring) (emphasis added).

14 Rather, we see them as actions to pursue a remedy that is available to Seneca County by

virtue of its rights in immovable property. Accordingly, the Foreclosure Actions are not

covered by the immovable-property exception to sovereign immunity as it has been

recognized at common law.

We find additional support for our conclusion in the Restatement (Second) of

Foreign Relations Law of the United States (Am. Law Inst. 1965). Courts have regularly

consulted this edition of the Restatement when faced with ascertaining the scope of the

common law exception to sovereign immunity for immovable property. See, e.g.,

Permanent Mission of India II,

; Permanent Mission of India I,

.

In comment (d) of section 65, which generally addresses the “[i]mmunity of foreign

state[s] from jurisdiction to enforce tax laws,” the Restatement reports that (as of that

writing) “no case has been found in which the property of a foreign government has

been subject to foreclosure of a tax lien or a tax sale.” Restatement (Second) of Foreign

Relations Law § 65 cmt. d. This void, the Restatement explains, arises because although

“particular types of property of foreign governments may be carried on the tax rolls and

be made the subjects of levy and assessment,” the common law immunities enjoyed by

foreign sovereigns “prevent[] the actual enforcement against the property of a foreign

state of a tax claim of the territorial state.” Id.

Seneca County attempts to downplay the significance of comment (d)’s report by

suggesting that it “relates only to tax liability arising from ownership of movable

property by a foreign sovereign, not tax liability from ownership of immovable

property.” Appellant’s Br. 25. The Restatement does not expressly acknowledge any

such limitation, however, and we see no reason to infer one. In any event, the County

identifies no case before or since the Restatement issued in which a court in the United

15 States has applied the common law exception for immovable property to permit the

foreclosure of a foreign sovereign’s real property for nonpayment of taxes. 9

Seneca County’s failure to produce such a case is telling, but hardly surprising.

Until the middle of the 20th century, the United States afforded foreign sovereigns

“absolute immunity” from the execution of judgments against their properties located

in this country. Stephens v. Nat’l Distillers & Chem. Corp.,

(2d Cir.

1995); see also Restatement (Fourth) of Foreign Relations Law of the United States § 464

reporters’ n.1 (Am. Law Inst. 2018) (“Prior to the enactment of the FSIA, the United

States gave absolute immunity to foreign sovereigns from the execution of

judgments.”). 10 Thus, “[e]ven if a court acquired jurisdiction and awarded judgment

9In support of its contrary position, Seneca County relies primarily on authorities that we find inapposite: (1) cases and scholarly works that restate the immovable-property exception in general terms; (2) cases in which rights to real property were actually in dispute, see, e.g., Chattanooga,

(eminent-domain proceeding), Permanent Mission of India II,

(lawsuit contesting validity of tax lien); (3) cases that concern doctrines other than the immovable-property exception to sovereign immunity, see, e.g., State v. City of Hudson,

,

(1950) (applying state constitutional provision); see also, e.g., City Council of Augusta v. Timmerman,

(4th Cir. 1916) (applying the rule that “courts will not interfere by injunction with the collection of the public revenue, on the ground that a tax is illegal, unless it clearly appears that the complainant has no adequate legal remedy”); and (4) several academic articles that purportedly identify a handful of judicial decisions (all issued by foreign courts) authorizing the execution of judgment against a foreign sovereign’s real property, see, e.g., Charles Fairman, Some Disputed Applications of the Principle of State Immunity, 22 AM. J. INT’L L. 566, 567 (1928); Note, Execution of Judgments Against the Property of Foreign States, 44 HARV. L. REV. 963, 965 (1931). In our view, these sources fall far short of establishing that the immovable property exception under common law should be understood to permit tax foreclosure actions against a foreign sovereign’s property.

10As we noted above, when describing the common law exception to sovereign immunity for immovable property, courts have generally looked to the Restatement (Second) of Foreign Relations Law. See, e.g., Permanent Mission of India II,

; Permanent Mission of India I,

. This is because the Restatement (Second) predates the enactment of the FSIA, whereas more recent editions of the Restatement postdate the statute and so naturally focus on the FSIA’s articulation of a statutory immovable-property exception to foreign sovereign

16 against a foreign state,” the “[s]uccessful plaintiffs [would have] to rely on voluntary

payment by the foreign state” to obtain satisfaction of judgment because the foreign

sovereign’s property remains shielded from attachment, arrest, or execution. Rubin v.

Islamic Republic of Iran,

(7th Cir. 2016), aff’d,

(2018); see

also Dexter & Carpenter v. Kunglig Jarnvagsstyrelsen,

(2d Cir. 1930) (“The

clear weight of authority in this country, as well as that of England and Continental

Europe, is against all seizures [of a foreign sovereign’s property], even though a valid

judgment has been entered.”).

Nothing in the longstanding case law, moreover, suggests that this common law

rule of “complete immunity from execution” recognized an exception for immovable

property. Conn. Bank of Commerce v. Republic of Congo,

, 251 (5th Cir. 2002);

see also Stephens,

(observing that “[t]he only exception to this rule was

that attachment could sometimes be allowed in order to obtain jurisdiction over the

foreign entity”). In line with this view, we observe that Congress apparently did not

conceive that such a limitation already existed when, as part of the Foreign Sovereign

Immunities Act of 1976 (the “FSIA”), it created a series of statutory “[e]xceptions to the

immunity from attachment or execution”—including, most notably, an immovable-

property exception.

; see also

§ 1610(a)(4) (generally abrogating

immunity from execution where “the execution relates to a judgment establishing rights

in property . . . (B) which is immovable and situated in the United States”). As

evidenced by the FSIA House Report, Congress saw these statutory exceptions as

deviations from the common law rule of “absolut[e] immun[ity] from execution.” H.R.

Rep. 94-1487, 27 (1976), reprinted at 1976 U.S.C.C.A.N. 6604, 6626; see also Permanent

Mission of India I,

(describing the FSIA House Report as “reliable

immunity. In any event, we do not see anything in the Restatement (Third) or Restatement (Fourth) of Foreign Relations Law that casts doubt on the analysis offered here.

17 legislative history”). The Report explains, in particular, that “[s]ections 1610(a) and (b)”

of the FSIA—which set forth all of the FSIA’s exceptions to immunity from execution—

were “intended to modify this rule by partially lowering the barrier of immunity from

execution.” 1976 U.S.C.C.A.N. at 6626.

A foreclosure action under Article 11 differs in no meaningful way from an

execution of judgment against property. Just as execution or attachment enforces a

money judgment by seizing the debtor’s property, the Foreclosure Actions seek a court

order awarding Seneca County title to the Properties as satisfaction for the Cayugas’

acknowledged money debt. See Execution, BLACK’S LAW DICTIONARY (11th ed. 2019)

(defining “execution” as the “[j]udicial enforcement of a money judgment, usu[ally] by

seizing and selling the judgment debtor’s property”); Attachment, BLACK’S LAW

DICTIONARY (11th ed. 2019) (defining “attachment” as “[t]he seizing of a person’s

property to secure a judgment or to be sold in satisfaction of a judgment”). The

County’s tax enforcement proceedings therefore fall comfortably within the absolute

immunity from execution of judgment that foreign sovereigns traditionally enjoyed at

common law.

For all these reasons, we conclude that the common law exception to sovereign

immunity for lawsuits concerning immovable property does not cover the Foreclosure

Actions. Accordingly, we need not—and do not—decide whether an analogous

exception limits the scope of tribal sovereign immunity from suit.

II. Sherrill’s Import

Seneca County also urges us to overturn the District Court’s judgment based on

the Supreme Court’s decision in Sherrill. In the County’s view, the Sherrill Court held

that a tribe’s immunity from suit does not bar tax enforcement actions seeking to

foreclose on lands purchased by the tribe on the open market.

18 We have already rejected this reading of Sherrill on two separate occasions: first

in Oneida I,

, and next in Cayuga I,

. Although for

reasons we discussed above neither decision controls our analysis as a matter of

precedent, we agree with those panels’ analyses and, for the reasons set forth below,

echo their conclusion that Sherrill does not strip tribes of their immunity from suit in tax

foreclosure proceedings.

Sherrill concerned the taxation of parcels of land located in the City of Sherrill,

New York (“the City”), that once were part of the historic reservation of the Oneida

Indian Nation (the “Oneidas” or the “Oneida Nation”). See

. The Oneidas

reportedly sold these parcels to “a non-Indian in 1807,” but later, in the 1990’s, the tribe

repurchased them on the open market.

. When the Oneida Nation then refused

to pay property taxes on those lands to the City, the City initiated eviction proceedings

in state court. See

In response, the Oneidas filed a federal lawsuit seeking “equitable

relief prohibiting, currently and in the future, the [City’s] imposition of property taxes”

on the lands.

. The tribe pressed the position that its “acquisition of fee title

to discrete parcels of historic reservation land revived [its] . . . ancient sovereignty

piecemeal over each parcel.”

.

The Supreme Court rejected the Oneidas’ claim of immunity from taxation. The

tribe’s newly purchased properties “had been subject to state and local taxation for

generations,” the Court observed.

. Invoking the doctrines of “laches,

acquiescence, and impossibility,”

, it reasoned that the tribe should not be

permitted to “rekindl[e] embers of sovereignty that long ago grew cold,”

.

Thus, the Court concluded, the Oneidas could not “resist[] the payment of property

taxes to Sherrill” on the ground that the disputed properties were not subject to the

City’s “regulatory authority.”

.

19 As we explained in Oneida I and later affirmed in Cayuga I, the Court’s holding in

Sherrill pertains to a tribe’s immunity from taxation—e.g., whether a state or local

authority has the power to impose real property taxes on tribal lands. See Oneida I,

; Cayuga I,

. It does not, however, speak to a tribe’s immunity

from suit—e.g., whether a state may use the courts against a tribe to collect taxes levied

against tribal lands. See Oneida I,

; Cayuga I,

. These two

types of immunities are “separate and independent,” we emphasized, each defined by a

“distinctive history” in the case law. Oneida I,

. Tribal immunity from the

imposition of taxes, for example, is “closely tied to the question of whether the specific

parcel at issue is Indian reservation land.”

at 157 (quoting Cass Cty. v. Leech Lake Band

of Chippewa Indians,

(1998)). In contrast, “a tribe’s immunity from suit is

independent of its lands.”

(citing Kiowa Tribe of Okla. v. Mfg. Tech., Inc.,

,

754 (1998)). We therefore concluded that Sherrill did not abrogate the Oneidas’

immunity from a suit to collect taxes by simply recognizing the City’s authority to

impose taxes on the tribe’s non-reservation properties. See id. at 159. Instead, we

observed “a difference between the right to demand compliance with state laws”

(which Sherrill addressed) and “the means available to enforce [those laws]” (which

Sherrill did not consider). Id. at 158 (quoting Kiowa, 523 U.S. at 755).

We see no reason today to depart from this understanding of Sherrill’s scope and

import. In support of its reading that Sherrill eliminated the Oneidas’ immunity from

suit in tax foreclosure actions, Seneca County points to a footnote in the Sherrill majority

opinion assailing the dissent’s “suggest[ion] that, compatibly with [the majority]

decision, the Tribe may assert tax immunity defensively in the eviction proceeding.”

Sherrill,

n.7. We agree with the Cayuga Nation, however, that the Court’s

reference to “tax immunity” in footnote 7 concerns the Oneidas’ immunity from

taxation, not its immunity from suit to enforce a tax liability. We doubt, moreover, that

20 the Supreme Court would choose to effect such a significant curtailment of tribal

immunity from suit using ambiguous language relegated to a footnote. Such an

approach would run directly counter to the Court’s admonition against “carving out

exceptions” to tribal immunity from suit and its longstanding practice of “defer[ring] to

Congress about whether to abrogate [that] immunity.” Bay Mills,

.

Nor are we free to alter this legal analysis based on Seneca County’s dark

predictions that, if we affirm the District Court’s ruling, tribes will “buy large swaths of

property within the County,” and the County, in turn, will be left remediless if and

when those tribes refuse to pay property taxes. Appellant’s Br. 37. As we explained in

Oneida I,

, the Supreme Court has already rejected a similar line of

argument in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of

Oklahoma,

(1991) (“Potawatomi”). There, the Court held that while

Oklahoma could tax certain cigarette sales made at the tribe’s convenience store, the

tribe’s immunity from suit precluded the State from suing to collect unpaid taxes.

Potawatomi,

. In reaching this conclusion, the Court acknowledged

that tribal immunity from suit “bar[red] the State from pursuing the most efficient

remedy.”

. It resisted, however, Oklahoma’s claim that the state “lack[ed] any

adequate alternatives.”

The Court pointed out that the State could, among other

things, enter into an agreement with the tribe “to adopt a mutually satisfactory regime

for the collection of this sort of tax.”

And if that failed, the Court continued,

Oklahoma could “of course seek appropriate legislation from Congress.”

Because those same alternatives are available to Seneca County with respect to

the real property taxes at issue here, we will not assume that the County’s right to tax

the Properties presumes the right to use Article 11 foreclosure proceedings to collect

those taxes. Cf. McGirt,

(observing that Oklahoma’s “dire warnings”

about the consequences of recognizing certain lands within that State as reservation

21 lands are “not a license for us to disregard the law”). Instead, we adhere to the settled

principle that “it is fundamentally Congress’s job, not ours, to determine whether or

how to limit tribal immunity.” Bay Mills,

. We therefore conclude—as we

did in Oneida I and Cayuga I—that “[t]he remedy of foreclosure” is unavailable to the

County by virtue of the Tribe’s immunity from suit. Oneida I,

.

CONCLUSION

For the reasons set forth above, we AFFIRM the judgment of the District Court.

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