Cayuga Indian Nation of New York v. Seneca County, New York
DECISION AND ORDER granting 39 Motion to Dismiss for Failure to State a Claim; denying 39 Motion to Dismiss for Lack of Jurisdiction. Plaintiffs application [#39] to dismiss Defendants counterclaim is granted, with prejudice. Signed by Hon. Charles J. Siragusa on 4/30/17. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CAYUGA INDIAN NATION OF NEW YORK,
DECISION AND ORDER
SENECA COUNTY, NEW YORK,
Daniel J. French, Esq.
Lee Alcott, Esq.
300 South State Street
Syracuse, New York 13202
Brian Laudadio, Esq.
Louis P. DiLorenzo, Esq.
Mary P. Moore, Esq.
Bond Schoeneck & King PLLC
530 Linden Oaks, Suite 310
Rochester, New York 14625
This action challenges Seneca County‘s ability to impose and collect ad valorem
property taxes on parcels of real estate owned by the Cayuga Indian Nation of New
The Cayuga Nation contends both that Seneca County cannot impose the
property taxes, because the subject properties are “located within an Indian
reservation,”1 and cannot sue to collect the taxes, because the Cayuga Indian Nation
enjoys sovereign immunity from suit.2 Now before the Court is the Cayuga Nation’s
motion (Docket No. [#39]) to dismiss Seneca County’s counterclaim, which seeks a
declaratory judgment that the subject properties, which the Cayugas ostensibly sold two
centuries ago and then recently re-purchased, “are not now an Indian reservation for
purposes of New York Real Property Tax Law § 454 or Indian Law § 6 or [‘]Indian
Country[‘] for purposes of 18 U.S.C. § 1151.” The application is granted.
Unless otherwise indicated, the following facts are taken from Seneca County’s
“Answer to Amended Complaint and Counterclaim,”3 and are presumed to be true for
purposes of this Decision and Order. In February 1789, the Cayuga Nation and the
State of New York signed a treaty, which, among other things, established a 64,000acre Cayuga Indian Reservation. Between 1795 and 1807, the Cayuga Nation sold all
of the Cayuga Indian Reservation lands to the State of New York. The State of New
York subsequently sold those lands to private third parties. In 1838, the United States
and the Cayuga Indians entered into the Treaty of Buffalo Creek, which, Seneca County
maintains, disestablished any remaining Cayuga Reservation in New York. In recent
years, the Cayuga Nation purchased at least five parcels of land in Seneca County,
Amended Complaint [#9] at ¶ 1.
This Court has already granted a preliminary injunction, agreeing with the latter proposition.
See, Gottlieb, Rackman & Reisman, P.C. v. ZenColor Corp., No. 13 CV. 5715 JGK, 2015 WL
4206982, at *1 (S.D.N.Y. July 10, 2015) (“When presented with a motion to dismiss pursuant to Rule
12(b) (6), the Court may consider documents that are referenced in the counterclaims, documents that
the pleader relied on in bringing suit and that are in the pleader's possession or that the pleader knew of
when bringing suit, and matters of which judicial notice may be taken.”) (citing Chambers v. Time Warner,
Inc., 282 F.3d 147, 153 (2d Cir.2002).
within the same geographic area as the Cayuga Indian Reservation that was
established in 1789. Seneca County imposed property taxes on the Cayuga-owned
properties, but the Cayuga Nation refused to pay the taxes. Thereafter, Seneca County
initiated tax foreclosure proceedings against the Cayuga Nation.
In response to those foreclosure lawsuits, the Cayuga Nation commenced this
lawsuit. The Cayugas’ Amended Complaint purports to assert two causes of action.
The first cause of action alleges that the County’s attempts to foreclose on the Cayugas’
properties violate federal law, and specifically, the Treaty of Canandaigua, the U.S.
Constitution Article I, § 8, and the “Non-Intercourse Act,” 25 U.S.C. § 177. On this point,
the Cayugas’ pleading alleges that any properties which the Cayugas own in Seneca
County are within the geographic boundary of the 64,000-acre Cayuga Indian
Reservation that was “acknowledged [by the United States of America] in the Treaty of
Canandaigua, November 11, 1794.”4 The Amended Complaint contends that, while the
Cayuga Nation purportedly sold all of that 64,000-acre reservation to the State of New
York, such sales were void ab initio, since they were never approved by Congress as
required by the Non-Intercourse Act.5 Consequently, the pleading asserts, “the Nation’s
64,000-acre reservation continues to exist to this day,” and the subject properties are
“‘Indian Country’ within the meaning of 18 U.S.C. § 1151.”6 Alternatively, the Cayugas
contend that regardless of the reservation status of the subject land, the Cayuga Nation
possesses “tribal sovereign immunity, which bars administrative and judicial
Amended Complaint [#9] at ¶ 7.
See, Amended Complaint [#9] at ¶ 9 (“All of those transactions and transfers were in violation of
federal law and were void ab initio, and the Nation never lost its aboriginal title[.]”).
Amended Complaint [#9] at ¶ 8. 18 U.S.C. § 1151 defines “indian country,” in pertinent part, as
“all land within the limits of any Indian reservation under the jurisdiction of the United States Government.”
proceedings against the Nation and bars Seneca County from taking any assets of the
In sum, the Cayugas’ first cause of action is twofold: 1) the subject properties are
part of the federally-recognized Cayuga Indian Reservation, and the County therefore
cannot foreclose on the properties, because it lacks the authority to interfere with the
ownership or possession of federal Indian reservation lands; and 2) the “Cayuga Indian
Nation of New York” is a “sovereign Indian nation,” which is protected from foreclosure
lawsuits by the federal doctrine of sovereign immunity from suit.8
The Cayugas’ second cause of action alleges that Seneca County violated two
New York statutes -- New York State Property Tax Law § 454 and New York Indian Law
§ 6 -- by assessing property taxes on their properties. On this point, the pleading
contends that both of those statutes forbid the imposition of taxes on “Indian
reservation” lands. See, Amended Complaint [#9] at ¶ ¶ 21-22 (“New York [Real
Property Tax Law § 454] provides that ‘real property in any Indian reservation owned by
the Indian nation, tribe or band occupying them shall be exempt from taxation[, while]
New York Indian Law § 6 directs that no taxes shall be established upon Indian
Reservation lands. . . . Pursuant to the aforesaid provision[ ] of state law, taxes should
not have been assessed against the Nation-owned properties[.]”).
As for relief, the Cayugas’ pleading seeks two types.
First, the Amended
Complaint seeks a declaration that the County cannot foreclose on, or otherwise
“acquire, convey, sell or transfer title” to, “Nation-owned properties” within Seneca
Amended Complaint [#9] at ¶ 17.
Amended Complaint [#9] at ¶ 20; see also, id. at ¶ 18(d) (referring to “the Nation’s sovereign
immunity, which derives from Article I, Section 8 of the United States Constitution and from federal
County. Second, the Amended Complaint seeks an injunction, prohibiting the County
from making “any further efforts” to foreclose on, acquire, convey or otherwise sell
“Nation-owned properties in Seneca County;” prohibiting the County from “interfering in
any way with the Nation’s ownership, possession, and occupancy of such lands;” and
requiring the County to “rescind all acts taken to acquire, convey, foreclose, sell or
transfer title to Nation-owned properties within Seneca County to date.”
When the Cayugas commenced this action, they also filed a motion for
preliminary injunctive relief, barring Seneca County from proceeding with pending
foreclosure actions, affecting the five parcels identified in the Amended Complaint, on
the basis of sovereign immunity. On August 20, 2012, the Court granted such
preliminary injunctive relief. Cayuga Indian Nation of New York v. Seneca County, New
York, 890 F.Supp.2d 240 (W.D.N.Y. 2012). Seneca County appealed, but on July 31,
2014, the United States Court of Appeals for the Second Circuit affirmed this Court’s
ruling, agreeing that the Cayuga Indian Nation has sovereign immunity from suit.
Cayuga Indian Nation of New York v. Seneca County, New York, 761 F.3d 218 (2d Cir.
On August 31, 2015, Seneca County filed its Answer to Amended Complaint and
Counterclaim [#37]. The counterclaim seeks a declaratory judgment “that the Subject
Properties are not now an Indian reservation for purposes of New York Real Property
Tax Law § 454 or Indian Law § 6 or Indian country for purposes of 18 U.S.C. § 1151.”
The pertinent factual allegations supporting the counterclaim are as follows:
On or about July 27, 1795, the Nation entered into a treaty with the State
of New York under which New York acquired the entire “Original
Reservation,” except for a three-square mile parcel. In 1807, the State of
New York purchased the remaining three-square mile parcel . . . from the
Nation. The Treaty of Buffalo Creek of 1838 was ratified by the Senate
and proclaimed by the President of the United States. The Treaty of
Buffalo Creek of 1838 disestablished any Nation reservation in New York.
As a result of the foregoing, any and all right, title, and interest of the
Nation to the “Original Reservation” had lawfully extinguished and the
State of New York held full title to these lands[, which they later sold to ]
private successors in interest. . . . The subsequent history and treatment
of the land located within what had been the “Original Reservation”
demonstrate and confirm that the former Nation reservation was
disestablished long ago.
Answer to Amended Complaint with Counterclaim [#37] at ¶ ¶ 32-37, 39 (emphasis
added; paragraph numbers omitted).
Thus, Seneca County’s contention that the
Cayuga Indian Reservation does not presently exist has two primary components: First,
that the reservation was disestablished by the Treaty of Buffalo Creek; and second, that
such disestablishment has been “demonstrated and confirmed” by the “subsequent
history and treatment of the land.”9
The counterclaim seeks the dismissal of the
Amended Complaint, and a declaration that “the former Nation reservation has been
disestablished as to the subject lands and that the lands that were formerly the “Original
Reservation” are neither “Indian country” nor part of an “Indian reservation[.]”
On October 8, 2015, the Cayuga Nation filed the subject motion [#39] to dismiss
the counterclaim. The Nation first contends that the counterclaim is “non-justiciable”
because it is barred by sovereign immunity. In particular, the Nation asserts that by
bringing this action, it “did not expressly or impliedly consent to an adjudication of its
reservation status in the abstract.”10 The Nation admits that there is an exception to
As will be seen below, these allegations track the factors which federal courts apply when
determining whether Congress has disestablished a federal Indian reservation.
Motion to Dismiss, Memo [#39-1] at p. 1.
sovereign immunity, which permits a counterclaim that “mirrors” the sovereign’s claim,
but contends that Seneca County’s counterclaim does not mirror the Nation’s claim.
Further, the Nation contends that to the extent that the counterclaim mirrors the Nation’s
claim, it is still non-justiciable because the counterclaim is redundant of the Nation’s
claim, and does not present an independent case or controversy.
As a second basis for dismissal, the Nation contends that the counterclaim is
barred by collateral estoppel. In particular, the Nation contends that the Seneca County
Sheriff and Seneca County District Attorney unsuccessfully litigated the same argument
that Seneca County is raising here – that the Cayuga Reservation was disestablished
by the Treaty of Buffalo Creek – in Cayuga Indian Nation of New York v. Gould, 14
N.Y.3d 614, 930 N.E.2d 233 (“Gould”), cert den., 562 U.S. 953 (2010). The Nation
contends that because the Seneca County Sheriff and Seneca County District Attorney
were sued in their official capacities in Gould, they are in sufficient privity with Seneca
County, such that collateral estoppel should apply to the County in this action.
As the third and last basis for its motion to dismiss the counterclaim, the Nation
contends that the counterclaim fails to state an actionable claim as a matter of law,
since “binding precedent” and other Second Circuit case law establishes that the
Cayuga Reservation still exists. In particular, the Nation contends that the Second
Circuit Court of Appeals has determined that the similarly-situated Oneida Indian
Reservation continues to exist, and was not disestablished by the Treaty of Buffalo
Creek, citing, inter alia, Oneida Indian Nation of New York v. City of Sherrill, New York,
337 F.3d 139 (2d Cir. 2003), reversed and remanded, 544 U.S. 197, 125 S. Ct. 1478
(2005) and Oneida Indian Nation of N.Y. v. Madison County, 605 F.3d 149, 157 n. 6 (2d
Cir. 2010), vacated as moot, 562 U.S. 42 (2011).
The Cayuga Nation’s motion to dismiss is purportedly made pursuant to both
Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). It appears that the “justiciability”
arguments (sovereign immunity and lack of independent case or controversy) are made
under Rule 12(b)(1), while the collateral estoppel and merits-based arguments are
made under Rule 12(b)(6).
Seneca County opposes every aspect of the Cayuga Nation’s motion to dismiss.
Seneca County first contends that the counterclaim is justiciable, because the
counterclaim is the “mirror” of the Cayugas’ claim and therefore is not barred by
sovereign immunity, and because the counterclaim involves an independent case or
controversy, namely, whether the County can impose taxes on Nation-owned
properties. The County further contends that collateral estoppel does not apply to the
counterclaim, because there is no privity between Seneca County and the County
Sheriff and District Attorney who were sued in Gould; because the relevant issue in
Gould was an issue of law, to which collateral estoppel does not apply; and because the
issue in Gould was different inasmuch as it involved a different statute (New York Tax
Law § 470(16)(a)) than the ones involved in this lawsuit. Finally, the County contends
that the counterclaim has merit, and is not foreclosed by the case precedent upon which
the Cayuga Nation relies. For example, the County contends that the Second Circuit’s
decisions cited by the Cayugas involved the Oneida Indian Nation, not the Cayuga
Nation, and that the two nations are not similarly situated. Further, the County urges
this Court not to follow district court decisions which have found that the Cayuga
Reservation still exists.
The Cayuga Nation filed a reply in which it reiterates the arguments in its motion
to dismiss. Additionally, with regard to collateral estoppel, the Cayugas’ reply raises a
new argument, namely, that Seneca County should be deemed to be in privity with the
county officials who were involved in the Gould lawsuit, because Seneca County funded
and controlled the legal defense for those county officials. As for the merits of the
counterclaim, the Cayugas maintain that the counterclaim fails to plausibly plead how
the Cayuga Reservation was disestablished.
On June 15, 2016, the Cayuga Nation submitted a supplemental letter brief,
concerning the Supreme Court’s then-recent decision in Nebraska v. Parker, 136 S.Ct.
1072, 2016 WL 1092417 (2016) (“Parker”), which involved an analysis of whether
Congress had disestablished an Omaha Indian reservation in Nebraska. The Cayugas
argue that Parker supports their contention that the counterclaim lacks merit. Seneca
County responds that Parker is factually inapposite.
The Court indicated, prior to briefing on the motion to dismiss the counterclaim,
that it would only schedule oral argument if necessary. (Docket No. [#36]). The Court
has determined that oral argument is not necessary.
STANDARDS OF LAW
Where the Court has before it motions under both 12(b)(1) and 12(b)(6), it should
address the 12(b)(1) motion first. See, Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n,
896 F.2d 674, 678 (2d Cir. 1990) (“[T]he court should consider the Rule 12(b)(1)
challenge first since if it must dismiss the complaint for lack of subject matter
jurisdiction, the accompanying defenses and objections become moot and do not need
to be determined.”) (citations and internal quotation marks omitted).
FRCP 12(b)(1) : Sovereign Immunity and Case or Controversy Requirement11
“A complaint must be dismissed under Rule 12(b)(1) ‘when the district court
lacks the statutory or constitutional power to adjudicate’ the case.” McMillan v. N.Y.
State Bd. of Elections, 449 F. App'x 79, 80 (2d Cir. 2011) (quoting Makarova v. United
States, 201 F.3d 110, 113 (2d Cir.2000)). The standard to be applied on such a motion
is as follows:
In resolving a motion to dismiss under Rule 12(b)(1), the district court
must take all uncontroverted facts in the complaint (or petition) as true,
and draw all reasonable inferences in favor of the party asserting
jurisdiction. But where jurisdictional facts are placed in dispute, the court
has the power and obligation to decide issues of fact by reference to
evidence outside the pleadings, such as affidavits. In that case, the party
asserting subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists.
Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)
(citations and internal quotation marks omitted).
The “case or controversy” aspect of the Cayuga Nation’s motion clearly involves the Court’s
jurisdiction, and is therefore properly considered under FRCP 12(b)(1). See, Montesa v. Schwartz, 836
F.3d 176, 195 (2d Cir. 2016) (“Article III of the United States Constitution limits the jurisdiction of federal
courts to ‘Cases’ or ‘Controversies.’ U.S. Const. art. III, § 2.”). However, there is some dispute among
courts as to whether a motion to dismiss based on sovereign immunity falls under FRCP 12(b)(1) or
12(b)(6). See, Carver v. Nassau Cty. Interim Fin. Auth., 730 F.3d 150, 156 (2d Cir. 2013), as corrected
(Sept. 27, 2013) (“[W]hether the claim of sovereign immunity constitutes a true issue of subject matter
jurisdiction or is more appropriately viewed as an affirmative defense is an open question in the Supreme
Court and the Second Circuit. More recently, we held that the burden of proof in a case involving the
assertion of sovereign immunity is on the party asserting it—a holding that we acknowledged is more
consistent with the understanding that sovereign immunity was an affirmative defense.”) (citations
omitted). Despite the absence of definitive ruling on this point, the trend among courts in this Circuit
appears to warrant treating sovereign immunity as an affirmative defense. See, e.g., Aerotrade, Inc. v.
Republic of Haiti, 376 F. Supp. 1281, 1283 (S.D.N.Y. 1974) (“The plea of sovereign immunity constitutes
an affirmative defense, and as such, defendant's motion may be considered under Rule 12(b)(6) of the
Federal Rules of Civil Procedure as one for dismissal of the complaint for failure to state a claim for
relief.”) (Weinfeld, J.) (citations omitted). Here, though, the distinction between the two rules is immaterial
because in resolving the sovereign immunity issue the Court considers only the pleadings, the law and
matters of which the Court may take judicial notice. See, McMillan v. N.Y. State Bd. of Elections, No. 10CV-2502 JG VVP, 2010 WL 4065434, at *3 (E.D.N.Y. Oct. 15, 2010) (“This distinction [between FRCP
12(b)(1) and FRCP 12(b)(6)] does not affect the outcome here; in evaluating the State Board's assertion
of sovereign immunity, I look only to the pleadings and to state and federal law.”), aff'd, 449 F. App'x 79
(2d Cir. 2011).
The Counterclaim is Not Barred by Sovereign Immunity, and
Involves an Actual Case or Controversy
The Cayuga Nation contends that the County’s counterclaim is barred by
sovereign immunity from suit. On this point, the Cayugas argue that their sovereign
immunity bars a counterclaim that seeks “anything beyond the ‘mirror image’ of the
Nation’s affirmative claims,” which, they maintain, the County’s counterclaim does.
Alternatively, the Cayugas contend that if the counterclaim “mirrors” their own claim for
relief, then it fails to state an independent case or controversy, since the County would
face no injury if the Cayugas discontinued this action. Seneca County responds that its
counterclaim “mirrors” the Cayugas’ claim, and that the Cayugas waived sovereign
immunity on this issue by raising it in the Amended Complaint.12 Seneca County further
argues that the counterclaim is independently justiciable, and presents an actual case
or controversy, because the Cayugas continue to refuse to pay their property taxes to
the County, based on their contention that the subject property is part of the Cayuga
The Court has already determined that the Cayuga Nation cannot be sued in the
underlying foreclosure actions, because it enjoys sovereign immunity from suit. In that
regard, the Court pointed out that an Indian tribe generally cannot be sued unless it
consents to be sued, or unless Congress authorizes the lawsuit. “This principle extends
to counterclaims lodged against a plaintiff tribe—even compulsory counterclaims.” Ute
Indian Tribe of the Uintah & Ouray Reservation v. Utah, 790 F.3d 1000, 1009 (10th Cir.
2015) (citing Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505,
See, Def. Memo of Law [#40] at p. 7 (“[T]he Nation put the status of its purported reservation . .
. at issue by bringing its claims.”).
509–10, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991)13). Since there is no suggestion that
Congress authorized Seneca County’s counterclaim, the issue is whether the Cayuga
Nation waived its sovereign immunity as to the counterclaim, by bringing this action.
The U.S. Supreme Court has held that an Indian tribe does “not waive its
sovereign immunity” as to counterclaims “merely by filing an action for injunctive relief.”
Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S.
at 510, 111 S. Ct. at 909. However, where an Indian tribe seeks a declaration that a
particular fact is true, e.g., that its reservation still exists, it necessarily waives its
sovereign immunity as to a counterclaim seeking the exact opposite declaration. That
is, the Indian tribe has agreed to be bound by the court’s determination of the question
that the tribe has presented, whether or not it is favorable to the tribe. See, Tohono
O'odham Nation v. Ducey, 174 F. Supp. 3d 1194, 1204 (D. Ariz. 2016) (“Having placed
a question before the court, a sovereign acknowledges the court's authority to resolve
that question, whether in favor of the sovereign or in favor of a counterclaimant seeking
the opposite resolution.”) (citations omitted); see also, Rupp v. Omaha Indian Tribe, 45
F.3d 1241, 1245 (8th Cir. 1995) (“We will not transmogrify the doctrine of tribal immunity
into one which dictates that the tribe never loses a lawsuit. When the Tribe filed this
suit, it consented to and assumed the risk of the court determining that the Tribe did not
have title to the disputed tracts.”) (citation omitted); McClendon v. United States, 885
F.2d 627, 630 (9th Cir. 1989) (“Initiation of a lawsuit necessarily establishes consent to
the court's adjudication of the merits of that particular controversy.”).
The Supreme Court’s statement on this point is unequivocal: “Possessing immunity from direct
suit, we are of the opinion the Indian nations possess a similar immunity from cross-suits.” Id., 498 U.S. at
509, 111 S. Ct. at 909 (citation and internal quotation marks omitted).
The Cayuga Nation concedes that mirror-image counterclaims are not precluded
by sovereign immunity.14 Nevertheless, the Cayugas maintain that their claims are not
the mirror image of the counterclaim, since their claim makes specific reference to
particular statutes, while the counterclaim seeks a determination of the Cayuga
reservation’s status “in the abstract, disconnected from any specific right or dispute.” 15
The Cayuga Nation contends that because the counterclaim is not a “mirror image,” it is
barred by sovereign immunity.
However, the Court disagrees, and finds that the counterclaim is the “mirror
image” of the Cayugas’ claim. In particular, the counterclaim seeks a declaration that
the Cayuga-owned properties in Seneca County “are not now an Indian reservation for
purposes of New York Real Property Tax Law § 454 or Indian Law § 6 or Indian Country
for purposes of 18 U.S.C. § 1151,”16 because the reservation was disestablished. This
position is precisely the opposite of what the Cayuga Nation contends in the Amended
Complaint. In that regard, the Amended Complaint [#9] alleges, inter alia, that the
Cayuga Reservation was never disestablished, and therefore cannot be taxed by
Seneca County because it is “‘Indian country’ within the meaning of 18 U.S.C. § 1151"
(¶ 8) and an “Indian reservation” as described in NYRPTL § 454 and Indian Law § 6 (¶
The Court concludes that the Cayuga Nation has thus waived its sovereign
immunity as to the counterclaim, and its motion to dismiss the counterclaim is denied
insofar as it is based upon sovereign immunity.
See, Pl. Memo of Law [#39-1] at p. 1 (“[I]f the County’s counterclaim seeks anything beyond the
‘mirror image” of the Nation’s affirmative claims, the Nation’s sovereign immunity would preclude it.”)
(emphasis in original); see also, id., at p. 4 (Admitting that such mirror- image counterclaims are not
barred by Oklahoma Tax Commission.)
Pl. Memo of Law [#39-1] at . 5.
Answer with Counterclaim [#37] at ¶ 25.
The Cayugas nevertheless contend, alternatively, that if the counterclaim mirrors
the claims in the Amended Complaint, then the Court lacks subject-matter jurisdiction to
consider the counterclaim, since the counterclaim fails to present an independent case
On this point, the Cayugas cite, inter alia, Arista Records LLC v.
Usenet.com, Inc., No. 07 Civ. 8822(HB), 2008 WL 4974823 (S.D.N.Y. Nov. 24, 2008)
and Maverick Recording Co. v. Chowdhury, Nos. 07 Civ. 200 & 07 Civ. 640, 2008 WL
3884350 (E.D.N.Y. Aug. 19, 2008), for the proposition that claims must be dismissed
where they are “redundant” and “serve[ ] no independent purpose, but [are] rather only .
. . the ‘mirror image’ of [the] opposing party’s claim.” The Cayugas maintain that the
counterclaim is merely a “mirror image,” since, if the Tribe’s claims were discontinued,
there would no longer be any dispute between the Cayuga Nation and Seneca County.
Further, the Cayugas maintain that the counterclaim seeks “a ruling on the Nation’s
reservation status in the abstract, disconnected from any specific right or dispute,” and
therefore is not the proper subject of a declaratory judgment action.
However, the Court again disagrees. To begin with, it is clear from the pleadings
that there is a real, not speculative, ongoing disagreement between the parties as to
whether the Nation-owned properties are taxable, because they are Indian-reservation
lands, regardless of whether the County is presently able to collect any taxes
imposed.17 Even if the Cayuga Nation discontinued its lawsuit, there is every indication
that the Cayuga Nation will continue to own real estate in Seneca County, and that the
County will continue to impose property taxes annually on such lands, unless it is
demonstrated that such lands cannot be taxed. The Cayuga Nation contends that its
Congress could always enact legislation allowing the County to sue to collect the taxes, or the
Cayuga Nation could agree to pay the taxes.
lands should not be taxed, pursuant to RPTL § 454, Indian Law § 6 and 18 U.S.C. §
1151, and the County disagrees.
Consequently, under the totality of the
circumstances18 presented, the Court finds that the counterclaim presents an
independent case or controversy.
For the same reason, the Court does not agree with the Cayuga Nation that the
counterclaim merely raises an “abstract question.”19 On this issue, the legal standard is
The difference between an abstract question and a ‘controversy’
contemplated by the Declaratory Judgment Act is necessarily one of
degree, and it would be difficult, if it would be possible, to fashion a
precise test for determining in every case whether there is such a
controversy. Basically, the question in each case is whether the facts
alleged, under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.
Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L.
Ed. 826 (1941). The Court finds that there is a substantial controversy between the
parties, concerning the County’s ability to tax the Nation’s lands, of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment. For all of these reasons,
the Court finds that the Cayuga Nation’s arguments concerning the “justiciability” of the
counterclaim lack merit.
See, Nike, Inc. v. Already, LLC, 663 F.3d 89, 95 (2d Cir. 2011), aff'd, 133 S. Ct. 721, 184 L. Ed.
2d 553 (2013) (“[I]n Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85
L.Ed. 826 (1941) . . . the Supreme Court endorsed a totality of the circumstances test for determining
whether a party seeking relief under the Act has demonstrated that a justiciable ‘controversy’ exists.”).
Pl. Memo of Law [#39-1] at p. 1.
Seneca County’s counterclaim contends that the subject Nation-owned
properties in Seneca County are “neither ‘Indian country’ nor part of an ‘Indian
reservation,’” because, after the Cayuga Nation sold all of its lands to the State of New
York, “[t]he Treaty of Buffalo Creek of 1838 disestablished any [Cayuga] Nation
reservation in New York.”20 This contention is the basis for the counterclaim’s assertion
that “the subject properties are not now an Indian reservation for purposes of [RPTL] §
454 or Indian Law § 6 or Indian country for purposes of 18 U.S.C. § 1151.”21
Cayuga Nation counters that this claim is barred by collateral estoppel, because in
Gould, the New York Court of Appeals specifically held that the Treaty of Buffalo Creek
did not disestablish the Cayuga Reservation. The Cayuga Nation argues that while
Seneca County was not actually a party in Gould, it is nonetheless bound by Gould,
since the Seneca County Sheriff and Seneca County District Attorney, who were
defendants in Gould, are in privity with the County, inasmuch as the Sheriff and District
Attorney were sued in their official capacities.22 The County denies that it is in privity
Answer with Counterclaim [#37] at ¶ 35; see also, id. at pp. 6-7.
Answer with Counterclaim [#37] at ¶ 25.
As noted earlier, the Cayuga Nation’s reply brief makes an additional argument as to why the
Sheriff and District Attorney should be deemed to be in privity with Seneca County. Namely, because
Seneca County funded and controlled the defense in Gould. In support of this privity argument, the
Cayuga Nation has submitted minutes from meetings of the Seneca County Board of Supervisors, which,
the Nation contends, show that the County funded and controlled the defense in Gould. However,
arguments raised for the first time in a reply brief may be disregarded. See, e.g., In re Dobbs, 227 F.
App'x 63, 64 (2d Cir. 2007) (“[W]e think that it was entirely proper for the District Court to decline to
consider debtor-appellant's argument, raised for the first time in its reply brief, regarding proximate
causation.”). Here, the County did not have an opportunity to respond to the Nation’s legal argument, or
to challenge the Nation’s submission of matters outside of the pleadings. Accordingly the Court will not
consider this aspect of the Cayugas’ collateral-estoppel-privity argument, and will instead consider the
original basis for the Cayuga Nation’s privity argument, which is that privity exists because the Gould
defendants were sued in their official capacities.
with those county officials,23 and also denies that the issue presented in this action is
the same issue decided in Gould.
The Cayuga Nation’s collateral estoppel argument is made pursuant to FRCP
12(b)(6), and the standard for determining such motions is clear:
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its
face. We construe all factual allegations in the complaint as true and draw
all reasonable inferences in the plaintiff's favor.24 In its review, the Court
is entitled to consider facts alleged in the complaint and documents
attached to it or incorporated in it by reference, documents “integral” to the
complaint and relied upon in it, and facts of which judicial notice may
properly be taken under Rule 201 of the Federal Rules of Evidence.
Heckman v. Town of Hempstead, No. 13–1379–cv, 568 F. App'x 41, 43 (2d Cir. Jun. 3,
2014) (citations and internal quotation marks omitted).
Collateral estoppel is an affirmative defense. See, Austin v. Fischer, 453 F. App'x
80, 82, 2011 WL 6450728 at *1 (2d Cir. Dec. 23, 2011) (“Issue preclusion, or collateral
estoppel, is an affirmative defense that normally must be pled in a timely manner or it
may be waived.”) (citation and internal quotation marks omitted).
A Rule 12(b)(6)
motion to dismiss based upon an affirmative defense cannot be granted unless it is
clear from the face of the pleading that the claim is barred as a matter of law. See,
The County maintains that “New York courts have consistently held that district attorneys and
counties ‘are separate entities which do not stand in sufficient relationship with each other to warrant the
invocation of the doctrine of collateral estoppel,” citing Sacoccio v. Lange, 194 A.D.2d 794, 795 (2d Dept.
1993). The County argues that is because “law enforcement authorities and civil authorities serve
different purposes and responsibilities,” and that no privity exists here because the Gould civil action
arose in response to a criminal prosecution.
“Although a court must accept as true all the factual allegations in the complaint, that
requirement is inapplicable to legal conclusions.” Shannon v. Venettozzi, No. 15-2484, --- Fed.Appx. --- ,
2016 WL 6768497 at *1 (2d Cir. Nov. 15, 2016). For example, the Court is not required to accept Seneca
County’s contention, in its counterclaim, that “[t]he Treaty of Buffalo Creek of 1838 disestablished any
Nation reservation in New York,” since that is a legal conclusion. Answer with Counterclaim at ¶ 35.
Deswal v. U.S. Nat. Ass'n, 603 F. App'x 22, 23–24 (2d Cir. Mar. 12, 2015) (“Although
the statute of limitations is ordinarily an affirmative defense that must be raised in the
answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the
defense appears on the face of the complaint.”) (citations omitted); see also, Garcia v.
Does, 779 F.3d 84, 96–97 (2d Cir. 2015) (“It is certainly true that motions to dismiss a
plaintiff's complaint under Rule 12(b)(6) on the basis of an affirmative defense will
generally face a difficult road.”).
Particularly as to 12(b)(6) motions concerning collateral estoppel, the Second
Circuit has stated:
When a defendant raises the affirmative defense of . . . collateral estoppel
and it is clear from the face of the complaint that the plaintiff's claims are
barred as a matter of law, dismissal under Fed.R.Civ.P. 12(b)(6) is
Austin v. Downs, Rachlin & Martin Burlington St. Johnsbury, 270 F. App'x at 53
(citations and internal quotation marks omitted); see also, Wachtmeister v. Swiesz, 59
F. App'x 428, 429 (2d Cir. 2003) (“Dismissal under Rule 12(b)(6) is appropriate when a
[party] raises collateral estoppel, or issue preclusion, as an affirmative defense and it is
clear from the face of the [pleading], and consideration of matters which the court may
take judicial notice of, that the plaintiff's claims are barred as a matter of law.”).
The general legal principles concerning the doctrine of collateral estoppel are
well settled: “Under the doctrine of collateral estoppel (issue preclusion), a [party] is
prevented from relitigating in a subsequent action an issue of fact or law that was fully
and fairly litigated in a prior proceeding.” Austin v. Downs, Rachlin & Martin Burlington
St. Johnsbury, 270 F. App'x at 53 (2d Cir. 2008) (citation and internal quotation marks
omitted). The Gould decision, upon which the Cayugas rely, is a state-court judgment,
a federal court must give to a state-court judgment the same preclusive
effect as would be given that judgment under the law of the State in which
the judgment was rendered. Under New York law, the doctrine of issue
preclusion only applies if (1) the issue in question was actually and
necessarily decided in a prior proceeding, and (2) the party against whom
the doctrine is asserted had a full and fair opportunity to litigate the issue
in the first proceeding.
Mejia v. N.Y. City Health & Hosps. Corp., 622 F. App'x 70, 71 (2d Cir. 2015) (citations
and internal quotation marks omitted).
The litigant seeking the benefit of collateral estoppel must demonstrate
that the decisive issue was necessarily decided in the prior action against
a party, or one in privity with a party. The party to be precluded from
relitigating the issue bears the burden of demonstrating the absence of a
full and fair opportunity to contest the prior determination.
Buechel v. Bain, 97 N.Y.2d 295, 304, 766 N.E.2d 914, 919 (2001) (citation omitted), cert
den., 535 U.S. 1096 (2002).
To be clear, “the party seeking the benefit of the [collateral estoppel] doctrine . . .
bears the initial burden of demonstrating that there is privity.” State v. Zurich Am. Ins.
Co., 106 A.D.3d 1222, 1223, 965 N.Y.S.2d 206, 208 (1st Dept. 2013); see also, Bielby
v. Middaugh, 120 A.D.3d 896, 898, 991 N.Y.S.2d 813, 816 (4th Dept. 2014) (“The
litigant seeking the benefit of collateral estoppel must demonstrate that the decisive
issue was necessarily decided in the prior action against a party, or one in privity with a
party.”) (quoting Buechel v. Bain); Davidson v. Am. Bio Medica Corp., 299 A.D.2d 390,
391, 749 N.Y.S.2d 98, 99 (2d Dept. 2002) (“ABM [the party invoking collateral estoppel]
failed to establish that the plaintiff was in privity with any of the parties involved in the
The New York Court of Appeals has indicated that it can be difficult to determine
whether such privity exists, and that doubts should be resolved against the application
of the doctrine:
In the context of collateral estoppel, privity does not have a single welldefined meaning. Rather, privity is an amorphous concept not easy of
application and includes those who are successors to a property interest,
those who control an action although not formal parties to it, those whose
interests are represented by a party to the action, and those who are
coparties to a prior action. In addressing privity, courts must carefully
analyze whether the party sought to be bound and the party against
whom the litigated issue was decided have a relationship that would justify
preclusion, and whether preclusion, with its severe consequences, would
be fair under the particular circumstances. Doubts should be resolved
against imposing preclusion to ensure that the party to be bound can be
considered to have had a full and fair opportunity to litigate.
Buechel v. Bain, 97 N.Y.2d at 304–05, 766 N.E.2d at 920 (citations and internal
quotation marks omitted); see also, McKithen v. Brown, 481 F.3d 89, 105 (2d Cir. 2007)
(“Importantly, we have also cautioned that issue preclusion will apply only if it is quite
clear that these requirements have been satisfied, lest a party be precluded from
obtaining at least one full hearing on his or her claim.”) (emphasis in original, citation
and internal quotation marks omitted).
When considering the potential preclusive effect of prior federal-court judgments,
federal courts generally hold that for purposes of res judicata and/or collateral estoppel,
a government entity is considered to be in privity with an official of that same
government who was previously sued in his official capacity. See, O'Connor v. Pierson,
568 F.3d 64, 71 (2d Cir. 2009) (“‘As long as the government entity receives notice and
an opportunity to respond, an official-capacity suit is, in all respects other than name, to
be treated as a suit against the entity.’ We therefore agree with the district court that
the parties in the two actions [(A Board of Education and board members sued in their
official capacities)] are in privity for purposes of res judicata.”) (quoting Kentucky v.
Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105 (1985), other citations omitted).
However, New York state courts will not necessarily find privity between a
municipality and a municipal official sued in his official capacity. Particularly as regards
privity between members of the same municipal entity, another District Judge in this
Circuit recently stated the applicable New York law as follows:
In analyzing whether privity between two government agencies exists for
purposes of collateral estoppel, the New York State Court of Appeals has
looked to the Restatement Second of Judgments, which provides that:
If the second action involves an agency or official whose functions
and responsibilities are so distinct from those of the agency or
official in the first action that applying preclusion would interfere
with the proper allocation of authority between them, the earlier
judgment should not be given preclusive effect in the second
[Juan C. v.] Cortines, 89 N.Y.2d [659,] 669, 679 N.E.2d [1061,] 1066
[(1997)] (quoting Restatement (Second) of Judgments § 36, cmt. f).
Accordingly, in certain situations, a final decision on the merits that binds
one government agency may not bind a different government agency. This
[Court] has noted that New York courts have largely refused to find two
functionally independent governmental entities in privity with each other
for purposes of preclusion.
State of N.Y. v. Mountain Tobacco Co., No. 12-CV-6276(JS)(SIL), 2016 WL 3962992, at
*12 (E.D.N.Y. July 21, 2016) (some citations and internal quotation marks omitted); see
also, City of N.Y. v. Beretta U.S.A. Corp., 315 F. Supp. 2d 256, 267 (E.D.N.Y. 2004)
(“New York courts have largely refused to find two functionally independent
governmental entities in privity with each other for purposes of preclusion.”); see also,
id. (“In Juan C. v. Cortines, the New York Court of Appeals . . . [i]n determining whether
the [governmental officials] could be considered in privity for purposes of preclusion . . .
looked to the “nature, particular function, and purpose” of the two governmental
entities[, and] . . . to the actual relationship between the two agencies.”) (citations
omitted); Evergreen Bank N.A. v. Dashnaw, 246 A.D.2d 814, 816, 668 N.Y.S.2d 256,
258 (1998) (“The concept requires a flexible analysis of the facts and circumstances of
the actual relationship between the party and nonparty in the prior litigation[.]”)
(emphasis added, citation omitted).
Applying this standard in Juan C. v. Cortines, the New York Court of Appeals
found that there was not sufficient privity between members of the same New York City
municipal government. Specifically, the Court of Appeals held that the New York City
Corporation Counsel, which had represented the City in a Family Court Juvenile
Delinquency proceeding involving a high school student, and New York City School
personnel, who subsequently conducted a disciplinary hearing involving the same
student, were not in privity.
In that regard, the court noted that the City School
personnel were not parties to the earlier Family Court proceeding, and that their
authority was “distinctively separate from other usual City operations and powers and
specifically distinct from the Corporation Counsel’s role [in Family Court proceedings.].”
Id., 89 N.Y.2d at 666.
In the instant case, the Cayuga Nation cites federal-court decisions for the
proposition that governmental officials sued in their official capacities are deemed to be
“in privity” with the governmental entity that they serve. 25 However, none of the cases
cited by the Nation for that proposition applied New York law. 26 Nor is the Court able to
find any decision by a New York court finding privity, for purposes res judicata/collateral
estoppel, based upon the relationship between a municipality and municipal official
sued in his official capacity. Applying the standards of New York State law set forth
above, the Court does not believe that privity is established merely because the Sheriff
and District Attorney were sued in their official capacities in the Gould action. Nor does
the Cayuga Nation’s motion attempt to make the fact-specific showing required by New
York law.27 Accordingly, the Nation has not shown, in the first instance, sufficient privity
between the Seneca County and the Gould defendants to warrant the application of
collateral estoppel. See, State v. Zurich Am. Ins. Co., 106 A.D.3d at 1223, 965 N.Y.S.2d
at 208 (“[T]he party seeking the benefit of the [collateral estoppel] doctrine . . . bears the
initial burden of demonstrating that there is privity.”). The Nation’s motion to dismiss,
based on collateral estoppel, can be denied on that basis alone.
Further, the Court’s own examination of the particular functions and purposes of
the governmental entities involved here (Seneca County versus Seneca County Sheriff
and Seneca County District Attorney), as well as their relationship in the prior Gould
litigation, does not necessarily establish the required privity under New York law. To
begin with, the Cayuga Nation has not shown that Seneca County was an actual party
in Gould, or that it had any “legal or functional status” in that action. See, Juan C., 89
N.Y.2d. at 672 (Appellants “ had no legal or functional party status in the Family Court
Pl. Memo of Law [#39-1] at p. 12.
See, Pl. Memo of Law [#39-1] at p. 12. Additionally, two of the three cases cited by the Nation
involved consideration of the preclusive effect of prior federal-court judgments. Id.
See, Pl. Memo of Law [#39-1] at pp. 12-13.
Rather, in Gould the Cayuga Nation sued the sheriffs and district
attorneys of Seneca and Cayuga Counties, after those law enforcement officials
executed search warrants at two Cayuga-owned convenience stores selling cigarettes
without tax stamps, and seized the un-stamped cigarettes. The sheriffs and district
attorneys maintained that the Cayuga Nation’s retailers were violating New York Tax
Law § 471, which imposed sales taxes on cigarettes, and which, if willfully evaded,
could result in prosecution for a felony. In obtaining and executing the search warrants,
the sheriffs and district attorneys were ostensibly acting in their unique roles as
independently-elected law enforcement officials, with the district attorneys, at least,
acting on behalf of the People of the State of New York. 28 See, Baez v. Hennessy, 853
F.2d 73, 77 (2d Cir. 1988) (“When prosecuting a criminal matter, a district attorney in
New York State, acting in a quasi-judicial capacity, represents the State not the
county.”).29 Indeed, the dissenting opinion in the 4-3 Gould decision repeatedly refers
only to “the State” and “the Cayuga Nation,” not Seneca County or Cayuga County, and
the majority opinion described the case as being a dispute not between the counties
and the Cayuga Nation, but as “a dispute between law enforcement authorities and the
Cayuga Indian Nation.” Gould, 14 N.Y.3d at 622. Meanwhile, the instant case involves
Seneca County itself, not the Sheriff or District Attorney, and the County’s efforts to
collect county real property taxes through civil proceedings.
The Nation contends that the sheriffs and district attorneys were actually acting as “proxies” for
the Counties, who allegedly funded and directed the defense in Gould, but the Court has already
explained that it is not considering that argument because it was raised for the first time in the Cayuga
Of course, the District Attorney is nevertheless an officer of the County. Claude H. v. Cty. of
Oneida, 214 A.D.2d 964, 966, 626 N.Y.S.2d 933, 935 (4th Dept. 1995) (“It is well established that a
District Attorney is a local officer of the county rather than of the State.”) (citations omitted).
Based upon all of the foregoing, the Court finds that the Cayuga Nation has not
demonstrated the necessary privity, between Seneca County and the Gould
defendants, for collateral estoppel to arise under New York law. However, even if the
Cayuga Nation had made a sufficient showing of privity, the Court would nonetheless
find that the Cayuga Nation has failed to show that the issue presented by Seneca
County’s counterclaim — whether the 1838 Treaty of Buffalo Creek disestablished the
Cayuga reservation — was decided by the Court in Gould. In fact, the court in Gould
did not purport to make its own determination of that issue. Rather, the court in Gould
merely purported to determine whether, as of that date, the federal government
recognized the Cayuga reservation as still existing. As part of that discussion, the court
in Gould noted that no federal court had, as of that date, accepted the argument that the
1838 Treaty of Buffalo Creek disestablished the Cayuga reservation. 30 Again, though,
the Gould court did not purport to decide whether in fact the 1838 Treaty of Buffalo
Creek disestablished the Cayuga reservation.
For all of the reasons discussed above, the Cayuga Nation’s application to
dismiss the counterclaim based upon collateral estoppel is denied.
Motion to Dismiss for Failure to State a Claim
The third and final basis for the Cayuga Nation’s motion to dismiss the
counterclaim is that it fails to state an actionable claim, because as a matter of law, the
Gould, 904 N.Y.S.2d at 326. In arriving at this conclusion, the court in Gould made three
observations: First, that the Second Circuit, in Cayuga Indian Nation v. Pataki, 413 F.3d 266, 269 n. 2 (2d
Cir. 2005), had commented that the Treaty of Buffalo Creek did not mention Cayuga land or title; second,
that two U.S. District Court cases had found that the Treaty of Buffalo Creek did not disestablish the
Cayuga reservation; and third, that the U.S. Department of Interior had identified the land in question in
that case as being within the Cayuga reservation. The Court does not believe that any of those facts
would have prevented the court in Gould from making its own determination as to whether the Cayuga
reservation had been disestablished if it had wanted to do so.
1838 Treaty of Buffalo Creek did not disestablish the Cayuga Reservation, contrary to
what the counterclaim asserts.
In the regard, the Cayuga motion refers to the
counterclaim as “the County’s disestablishment claim,”31 referring to the County’s
contention that “[t]he Treaty of Buffalo Creek of 1838 disestablished any [Cayuga]
Nation reservation in New York.”32
The Court believes that the Cayuga Nation is correct in characterizing the
counterclaim as the County’s “disestablishment claim.” On this point, the counterclaim
makes the following factual assertions, in pertinent part:
The Nation concluded a treaty with the State of New York on or about
February 25, 1789, under which the Nation ceded all of its lands to New
York, except for 64,015 acres of land that constituted the Nation’s
The Subject Properties are located within the “Original Reservation.”
On or about July 27, 1795, the Nation entered into a treaty with the State
of New York under which New York acquired the entire “Original
Reservation,” except for a three-square-mile parcel.
In 1807, the State of New York purchased the remaining three-squaremile parcel in the “Original Reservation” from the Nation.
The Treaty of Buffalo Creek of 1838 was ratified by the Senate and
proclaimed by the President of the United States.
The Treaty of Buffalo Creek of 1838 disestablished any Nation reservation
in New York.
Pl. Memo of Law [#39-1] at p. 12 (emphasis added).
Answer with Counterclaim [#37] at ¶ 35.
As a result of the foregoing, any and all right, title, and interest of the
Nation to the “Original Reservation” had lawfully extinguished and the
State of New York held full title to these lands.
Answer to Amended Complaint with Counterclaim [#37] at ¶ ¶ 30-36 (paragraph
numbers omitted). Although the counterclaim seeks a declaration that “the Subject
Properties are not now an Indian reservation for purposes of New York Real Property
Tax Law § 454 or Indian Law § 6 or “Indian country” for purposes of 18 U.S.C. § 1151,”
the counterclaim alleges that the subject lands are not covered by the aforementioned
statutes because, and only because, the Cayuga reservation has been disestablished. 33
Consequently, pursuant to the 12(b)(6) standard set forth earlier in this decision, the
counterclaim cannot survive the Cayuga Nation’s motion to dismiss unless it plausibly
pleads that the Cayuga reservation was disestablished. The Court finds that it does not.
Significantly, the counterclaim fails to mention that between the time when the
“Original Reservation” was established (February 25, 1789) and the time when the State
of New York purchased all of the “Original Reservation” (1795 -1807), at least three
important things occurred: First, on March 4, 1789, the U.S. Constitution became
effective, “grant[ing] the federal government authority over Indian affairs” which had
previously belonged to the individual states, Citizens Against Casino Gambling in Erie
The Court points this out preliminarily because, in the County’s response [#40] to the Cayuga
Nation’s motion to dismiss, the County’s first argument in defense of the merits of the counterclaim does
not pertain to disestablishment. Rather, the County begins by arguing that the counterclaim is not
“foreclosed by precedent,” because “the issue of whether the Nation’s claimed lands would constitute a
‘reservation’ under N.Y. Real Property Tax Law § 454 or N.Y. Indian Law § 6 has not been addressed in
any of the cases cited by the Nation.” This argument seems to mean that there is no binding precedent
concerning whether the subject parcels would be considered reservation lands under those statutes if the
Cayuga reservation was not disestablished; if the Cayuga reservation was disestablished, it does not
seem that there would be much debate over whether the lands would qualify as “reservation” under those
statutes -- they would not. Since the whole focus of the counterclaim is the assertion that the Cayuga
reservation has been disestablished, the County’s lead-off argument really seems to be more directed
against the merits of the Cayuga Nation’s second cause of action than in support of the counterclaim.
County v. Hogen, No. 07-CV-0451S, 2008 WL 2746566 at *5 (W.D.N.Y. Jul. 8, 2008);34
second, in 1790 the U.S. enacted the “Non-Intercourse Act,” which “prohibited the
conveyance of Indian land except where such conveyances were entered pursuant to
the treaty power of the United States;”35 and third, on November 11, 1794, the Cayuga
Nation and the fledgling Federal Government entered into the Treaty of Canandaigua,
which effectively recognized the Cayuga “Original Reservation” as a federal Indian
reservation. See, Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d at 268–69 (“On
November 11, 1794, the Six Iroquois Nations entered the Treaty of Canandaigua with
the United States. 7 Stat. 44. This treaty acknowledged the Original Reservation the
Cayugas retained in the 1789 treaty with New York, and promised the Cayugas that the
land would remain theirs until they “chose to sell the same to the people of the United
States who have the right to purchase.” Id. art. II, 7 Stat. at 45.”) (footnote omitted).
Because of these events, at all relevant times the State of New York lacked the
authority to “disestablish” the Cayuga Reservation in any manner, including its
purported purchases of the Reservation lands in 1795 and 1807.
Rather, only the
federal government could disestablish the Cayuga Reservation:
See also, id. (“Its adoption removed any doubt as to whether, under the Articles of
Confederation, certain rights over Indians continued to be reserved to the states.”) (citation omitted);
Seneca Nation of Indians v. N.Y., 206 F. Supp. 2d 448, 482 (W.D.N.Y. 2002) (“The United States
Constitution became effective on March 4, 1789.19 The Indian Commerce Clause of the Constitution, art.
I, § 8, cl. 3, gave the federal government the sole power over Indian affairs and put to rest the dispute
between the national government and the states under the Articles of Confederation as to who had
authority to deal with Indian matters.”) (footnote omitted), aff'd, 382 F.3d 245 (2d Cir. 2004)
Oneida County, N.Y. v. Oneida Indian Nation of New York State, 470 U.S. 226, 232, 105 S.Ct.
1245, 1250 (1985); see also, id. (“ In 1793, Congress passed a stronger, more detailed version of the Act,
providing that “no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or
tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the
same be made by a treaty or convention entered into pursuant to the constitution ... [and] in the presence,
and with the approbation of the commissioner or commissioners of the United States” appointed to
supervise such transactions. 1 Stat. 330, § 8. Unlike the 1790 version, the new statute included criminal
penalties for violation of its terms. Ibid.”).
[O]nly Congress can divest a reservation of its land and diminish its
boundaries. Once a block of land is set aside for an Indian Reservation
and no matter what happens to the title of individual plots within the area,
the entire block retains its reservation status until Congress explicitly
Solem v. Bartlett, 465 U.S. 463, 470, 104 S. Ct. 1161, 1166, 79 L. Ed. 2d 443 (1984)
(emphasis added); see also, City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544
U.S. at 216, 125 S. Ct. at 1491, n. 9 (“The Court has recognized that ‘only Congress
can divest a reservation of its land and diminish its boundaries.’”) (quoting Solem v.
Indeed, very recently the Supreme Court reiterated its holding in Solem,
stating: “Only Congress can divest a reservation of its land and diminish its boundaries,
and its intent to do so must be clear.” Nebraska v. Parker, 136 S.Ct. at 1078-1079
Consequently, while the counterclaim appears to suggest that the State of New
York’s purchases of the Cayuga Nations’ land, in 1795 and 1807, respectively,
somehow contributed to the disestablishment of the Cayuga Reservation, that assertion
lacks merit since those transactions indisputably violated the Non-Intercourse Act, and
were never subsequently approved through the federal treaty-ratification procedures.36
See, Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d at 269 (“Although there is some
debate about whether a federal official who signed the  treaty [between the State
Rather, it seems that at most, the federal government declined to exercise its power to set aside
the sales, even though it clearly opposed the 1795 sale, and even though both sales violated the NonIntercourse Act as well as the U.S. Constitution. See, e.g., Cayuga Indian Nation of New York v. Pataki,
165 F.Supp.2d 266, 315 (N.D.N.Y. 2001) (Noting that despite “unequivocal language” in the U.S.
Constitution Art. I § 10 and Art. II, § 2, the State of New York “forged ahead on its own” and made treaties
with Indian nations including the Cayuga), rev’d on other grounds, 413 F.2d 266 (2005); id. at 335
(President Washington opposed the 1795 sale, but felt that it might be “too late” to set it aside if it had
already transpired); id. at 340 (“[B]oth President Washington and Secretary of War Pickering seemed
content to let the matter rest given that, in a manner of speaking, the damage had already been done.”)
of New York and the Cayuga Indians] as a witness was acting in his personal or official
capacity, it is undisputed that this treaty was never explicitly ratified by a treaty of the
In 1807, the State of New York purchased the Cayugas’
remaining three-square-mile parcel [but,] [a]gain, the Federal Government never
explicitly ratified this treaty.”); see also, Cayuga Indian Nation of N.Y. v. Cuomo, 730 F.
Supp. 485, 493 (N.D.N.Y. 1990) (“The defendants have been unable to establish a
genuine issue of material fact concerning alleged ratification by the federal government
of the 1795 and 1807 land conveyances at issue. [Despite having had over two years to
conduct discovery.] There is no evidence before this court that the President, with the
advice and consent of the Senate, ever ratified these conveyances by an express
federal treaty.”); Cayuga Indian Nation of N.Y. v. Pataki, 165 F. Supp. 2d 266, 353
(N.D.N.Y. 2001) (“Like the 1795 Treaty, this court has previously held that this 1807
Treaty was not ratified by the federal government in accordance with Article II, Section 2
of the U.S. Constitution, and hence plaintiffs established a prima facie case of a
Nonintercourse Act violation.”) (internal quotation marks omitted), rev'd on other
grounds, 413 F.3d 266 (2d Cir. 2005). Accordingly, to the extent that Seneca County’s
counterclaim contends that 1795 and 1807 transactions between New York State and
the Cayuga Nation had any effect on the legal status of the Cayuga reservation, such
contention lacks merit as a matter of law.
For the counterclaim to have merit, therefore, it must plausibly allege that some
act of Congress disestablished the Cayuga Reservation. However, the only federal
action mentioned in the subject counterclaim that could possibly have disestablished the
Cayuga Reservation is the Treaty of Buffalo Creek,37 which, for the reasons discussed
below, did not have that effect.
At the outset, the legal standard for determining whether Congress has
disestablished an Indian reservation is clear:
Congress possesses plenary power over Indian affairs, including the
power to modify or eliminate tribal rights. Accordingly, only Congress can
alter the terms of an Indian treaty by diminishing a reservation, and its
intent to do so must be clear and plain.
Our inquiry is informed by the understanding that, at the turn of this
century, Congress did not view the distinction between acquiring Indian
property and assuming jurisdiction over Indian territory as a critical one, in
part because the notion that reservation status of Indian lands might not
be coextensive with tribal ownership was unfamiliar, and in part because
Congress then assumed that the reservation system would fade over time.
Given this expectation, Congress naturally failed to be meticulous in
clarifying whether a particular piece of legislation formally sliced a certain
parcel of land off one reservation. Thus, although the most probative
evidence of diminishment is, of course, the statutory language used to
open the Indian lands, we have held that we will also consider “the
historical context surrounding the [legislation or treaty], and, to a lesser
extent, the subsequent treatment of the area in question and the pattern of
settlement there. Throughout this inquiry, we resolve any ambiguities in
favor of the Indians, and we will not lightly find diminishment.
S. Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343–44, 118 S. Ct. 789, 798, 139 L.
Ed. 2d 773 (1998) (citations and internal quotation marks omitted); accord, Nebraska v.
The Counterclaim alleges that “as a result of the foregoing,” the Cayuga Reservation was
“extinguished.” Answer to Amended Complaint with Counterclaim [#37] at ¶ 36. The “foregoing” to which
that statement refers are the factual averments concerning the purchases of Cayuga lands by the State of
New York and the factual averments concerning the Treaty of Buffalo Creek. Since the purchases of land
could not have extinguished the Cayuga Reservation, then the only remaining possibility is that the Treaty
of Buffalo Creek did so. These are the only theories presented by the Counterclaim. (The Counterclaim
goes on to allege that “[t]he subsequent history and treatment of the land located within what had been
the “Original Reservation” demonstrate and confirm that the former Nation reservation was disestablished
long ago.” Id. at ¶ 39.
Parker, 136 S.Ct. at 1078-1079.
To summarize, the three factors for determining whether a federal treaty has
disestablished an Indian reservation are 1) the language of the treaty; 2) the historical
context surrounding the treaty; and 3) the subsequent treatment of the land and the
pattern of settlement, which is the least important factor. Explicit treaty language, while
obviously the most probative evidence, is nonetheless not always required if the treaty’s
legislative history, and/or the subsequent treatment of the land “unequivocally” indicate
that disestablishment was intended by the treaty.38
evidence . . . cannot overcome the lack of clear textual signal that Congress intended to
diminish the reservation.” Nebraska v. Parker, 136 S.Ct. at 1080.
Supreme Court has never relied solely on the third category of evidence -- “evidence
concerning the subsequent treatment of the land and the pattern of settlement” -- to
demonstrate disestablishment of a reservation. Id., 136 S.Ct. at 1081-1082 (“[E]vidence
of the changing demographics of disputed land is the least compelling evidence in our
diminishment analysis, for every [transfer of reservation land, whether authorized or not]
necessarily resulted in a surge of non-Indian settlement. . . . [Similarly, e]vidence of the
subsequent treatment of the disputed land by Government officials likewise has limited
interpretive value.”) (citation and internal quotation marks omitted).
See, Oneida Indian Nation of N.Y. v. City of Sherrill, N.Y., 337 F.3d 139, 159 (2d Cir. 2003)
(“Although explicit reference to cession or other language evidencing the present and total surrender of all
tribal interests can be helpfully probative, particularly when buttressed by fixed compensation for the
opened lands, this language is not a prerequisite for a finding of diminishment. Rather, an act's legislative
history and the subsequent treatment of the land (including settlement patterns), may also suffice[.]”)
(citation and internal quotation marks omitted), rev'd and remanded, 544 U.S. 197, 125 S. Ct. 1478, 161
L. Ed. 2d 386 (2005). Such evidence must be unequivocal. Nebraska v. Parker, 136 S.Ct. at 1079 (“[O]ur
precedents also look to any ‘unequivocal evidence’ of the contemporaneous and subsequent
understandings of the status of the reservation[.]”).
Applying these standards to the 1838 Treaty of Buffalo Creek, District Judges in
this Circuit have uniformly concluded that the treaty did not disestablish the Cayuga
Reservation, either directly or by belatedly ratifying the 1795 and 1807 sales to the
State of New York. See, e.g., Cayuga Indian Nation v. Cuomo, 730 F.Supp. at 492-493
(“[D]efendants’ contention that the 1795 and 1807 conveyances were ratified by the
subsequent ratification of the Buffalo Creek treaty is without merit.”) (McCurn, J.);
Cayuga Indian Nation of New York v. Village of Union Springs, 317 F.Supp.2d 128, 137143 (N.D.N.Y. 2004) (“ After consideration of both the plain language of the Buffalo
Creek Treaty as well as the legislative history and subsequent treatment of the land
relating thereto, there is no substantial or compelling evidence that said Treaty served
to terminate the Cayugas' reservation.”) (Hurd, J.). Seneca County’s counterclaim fails
either to suggest that any of the three factors listed above support its bare assertion that
the Treaty of Buffalo Creek disestablished the Cayuga reservation, or to otherwise cast
doubt on these thorough and well-reasoned district court opinions.
The Court of Appeals for the Second Circuit has not indicated whether the 1838
Treaty of Buffalo Creek disestablished the Cayuga reservation, although it has at least
implied that this position lacks merit, by pointing out that the Treaty of Buffalo Creek
fails to even mention “Cayuga land or Cayuga title.”39 Moreover, the Second Circuit has
repeatedly indicated that the same treaty did not disestablish the Oneida reservation.
See, Oneida v. City of Sherrill, 337 F.3d 139, 160- (2d Cir. 2003) (“Construing the
Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d at 269 n. 2 (“Defendants claim that the 1838
treat of Buffalo Creek effectively ratified these treaties. [1795 and 1807 treaties between the State of New
York and the Cayuga Nation, by which the State obtained the Tribe’s lands]. Although we ultimately need
not reach this question, we note that, whatever it may do, the Treaty of Buffalo Creek neither mentions
Cayuga land or Cayuga title in New York, nor refers to the 1795 or 1807 treaties.”).
Buffalo Creek Treaty liberally and resolving, as we must, all ambiguities in the Oneidas'
favor, we conclude that neither its text nor the circumstances surrounding its passage
and implementation establish a clear congressional purpose to disestablish or diminish
the OIN reservation.”), reversed on other grounds, City of Sherrill, N.Y. v. Oneida Indian
Nation of New York, 544 U.S. 197, 125 S.Ct. 1478 (2005); Oneida Indian Nation of New
York v. Madison County, 605 F.3d at 157 n. 6 (“[Because the Supreme Court in Sherrill
declined to resolve the question,] [o]ur prior holding on this question – that the Oneidas’
reservation was not disestablished – therefore remains the controlling law of this
circuit.”) (citation and internal quotation marks omitted); Oneida Indian Nation of New
York v. Madison County, 665 F.3d 408, 443 (2d Cir. 2011) (“It remains the law of this
Circuit that the Oneidas’ reservation was not disestablished.”); Central New York Fair
Business Assoc. v. Jewell, --- Fed.Appx. ---, 2016 WL 7177757 at *2 (2d Cir. Dec. 9,
2016) (Reiterating that Oneida reservation “was not disestablished by the 1838 Treaty
of Buffalo Creek.”).40
In arriving at this conclusion, the Second Circuit began by examining the text of
the 1838 Treaty of Buffalo Creek, and noting that the “central bargain” of the treaty was
“the cession of New York Indians’ Wisconsin lands in exchange for reservation land in
Kansas.” Oneida Indian Nation v. City of Sherrill, 337 F.3d at 160 (emphasis added).
Next, the court noted that, unlike the treaty’s provisions pertaining to the Seneca and
Tuscarora Indians, which disestablished those tribes’ New York reservations, the
provision pertaining to the Oneidas did not provide “substantial and compelling
Accordingly, the County’s argument that this Court should reject the Second Circuit’s ruling in
Sherrill, concerning the effect of the Treaty of Buffalo Creek on the Oneida reservation, because the
Supreme Court vacated the decision on other grounds, lacks merit.
evidence” of Congressional intention to disestablish the Oneida reservation. Id. at 161162. Further, the court found that the legislative history of the treaty “indicate[d] little if
anything about Congress’s intent in 1838.” Id. at 162. The court further found that even
the federal government’s well-documented “Indian removal policy,” which involved
moving the Indians westward, and in particular out of New York, was insufficient proof of
an intent to disestablish the Oneida reservation, since the treaty failed to clearly indicate
that the Oneidas were required to leave New York. Id. at 163.
Finally, the court
determined that the subsequent treatment of the Oneida lands, including the pattern of
settlement by white settlers, was not clearly indicative of Congressional intent to
disestablish the reservation. Id. at 164. Significantly, on this point the court stated:
Because the Oneidas sold most of their land to the State or private parties
well before the Buffalo Creek Treaty and the flood of non-Indians into the
area is not clearly linked to the Treaty, the gradual reduction in the number
of Oneidas living on their reservation does not reflect a clear
congressional intent to disestablish it.
Id. at 164 (emphasis added). In sum, the court found that none of the three factors set
forth above clearly indicated that Congress intended the 1838 Treaty of Buffalo Creek to
disestablish the Oneida reservation.
This determination is essentially dispositive of Seneca County’s counterclaim,
since there is no appreciable difference between the Oneidas and the Cayugas with
regard to the aforementioned analysis. That is, in both cases there is only ambiguous
treaty language and historical evidence that is “mixed” at best, which cannot as a matter
of law prove disestablishment. Nebraska v. Parker, 136 S.Ct. at 1080.
To begin with, the treaty provision concerning the Cayuga Nation (Article 11) is at
least as ambiguous as the provision concerning the Oneidas (Article 13), and arguably
even more so, since it contains no reference whatsoever to Cayuga-owned lands.41
This is not surprising, since in 1838 the Cayuga Nation owned no lands in New York
(having sold all of their land to the State of New York) and were residing on the Seneca
In the Court’s view, such fact effectively disproves any Congressional
intention to disestablish the Cayuga reservation via the Treaty of Buffalo Creek, since,
according to no less an authority than the Supreme Court, it was commonly understood
at that time that the Cayuga no longer had a reservation to disestablish, due to their
transfer of fee title to the State of New York decades earlier. See, S. Dakota v. Yankton
Sioux Tribe, 118 S. Ct. at 798 (“[A]t the turn of this century, Congress did not view the
distinction between acquiring Indian property and assuming jurisdiction over Indian
territory as a critical one, in part because the notion that reservation status of Indian
lands might not be coextensive with tribal ownership was unfamiliar [.]”) (emphasis
added). That being the case, as concerns the Cayuga Indians, the intent of the Treaty
of Buffalo Creek would merely have been to move the Indians themselves west, without
any thought being given to disestablishing the then-seemingly-non-existent Cayuga
reservation.42 In any event, the text of the treaty does not clearly indicate an intent to
Article 11 states, in its entirety: “The United States will set apart for the Cayugas, on their
removing to their new homes at the west, two thousand dollars, and will invest the same in some safe
stocks, the income of which shall be paid them annually, at their new homes. The United States further
agree to pay to the said nation, on their removal west, two thousand five hundred dollars, to be disposed
of as the chiefs shall deem just and equitable.” 7 Stat. 550, 1838 WL 4507 (1838).
See, Cayuga Indian Nation of New York v. Village of Union Springs, 317 F.Supp.2d 128, 142
(“By the time of the 1838 Treaty, the Cayugas’ reservation had purportedly been transferred to the State
of New York via the 1795 Treaty of Cayuga Ferry. Although said treaty was in violation of the
Nonintercourse Act, nonetheless as it relates to the intent of the parties in 1838, the Cayugas could not
have intended to relinquish rights to land that they did not believe they held.”) (citations omitted).
disestablish the subject Cayuga reservation. See, Cayuga Indian Nation of New York v.
Village of Union Springs, 317 F.Supp.2d at 140-142 (Explaining why the treaty language
fails to provide compelling evidence of congressional intent to disestablish the Cayuga
Nor does there appear there appear to be any clear contemporaneous evidence
of Congressional intent concerning the treaty’s intended effect on the Cayuga Nation.
On this point, the Second Circuit’s discussion in Oneida Indian Nation of New York v.
City of Sherrill appears to be equally applicable to the Cayuga Nation. See also, Cayuga
Indian Nation of New York v. Village of Union Springs, 317 F.Supp.2d at 142-143
(Finding “no substantial or compelling evidence” concerning congressional intent).
More importantly, the counterclaim fails to allege any facts from which a reasonable
inference can be drawn that there exists clear and unequivocal evidence of
congressional intent to have the Treaty of Buffalo Creek disestablish the Cayuga
And finally, Seneca County cannot rely on the post-treaty treatment of the land or
demographic patterns to prove intent. On this point, the historical evidence is clear that
long before the Treaty of Buffalo Creek was executed, the Cayugas had sold all of their
reservation lands43 to the State of New York, which immediately re-sold the properties
to third parties. See, Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d at
163-164 (“Not surprisingly, the most significant population changes occurred when the
bulk of the land was alienated.”); see also, Cayuga Indian Nation of New York v. Pataki,
165 F.Supp.2d at 344 (“In November, 1796, the State auctioned the Cayuga lands
which it had acquired pursuant to the 1795 Cayuga Ferry Treaty.”). The subsequent
changes in the use of the land occurred because of those sales, not because of the
Treaty of Buffalo Creek. Indeed, it is not plausible that the 1838 treaty, which did not
even mention Cayuga lands, would have had any effect whatsoever on the treatment or
use of the subject land. In any event, even if such evidence existed it would have little
value in terms of this analysis, and would not be sufficient to establish a clear
congressional intent to disestablish the Cayuga reservation. See, Nebraska v. Parker,
136 S.Ct. at 1082 (“Evidence of the subsequent treatment of the disputed land . . .
likewise has limited interpretive value.”) (citation omitted).
concerning the Oneida Indians have no bearing in this action, because the counterclaim
involves factual issues unique to the Cayugas. Specifically, the County states:
[T]here are unique factual issues and legal arguments that apply to the
Cayugas regarding whether the 1794 Treaty of Canandaigua even
recognized a Cayuga reservation under federal law, whether the 1795 and
1807 conveyances by the Nation to the State of New York were made in
accordance with the requirements of the Non-Intercourse Act in effect at
those times, and whether the 1838 Treaty of Buffalo Creek disestablished
any federal Cayuga reservation or implicitly recognized that no federal
Cayuga reservation ever existed.
Def. Memo of Law [#40] at pp. 15-16. However, this contention lacks merit.
To begin with, the counterclaim as currently drafted does not even remotely
suggest that the Treaty of Canandaigua failed to recognize the Cayuga reservation
under federal law; that the 1795 and 1807 conveyances were made in accordance with
the Non-Intercourse act; or that the Treaty of Buffalo Creek “implicitly recognized that no
federal Cayuga reservation ever existed.” Rather, the County is making these bare
assertions for the first time, with regard to the counterclaim, in its opposition to the
motion to dismiss. For example, the counterclaim does not mention the Non-Intercourse
Act, let alone suggest that the 1807 and 1795 sales were made in accordance with that
Any such allegation would not be plausible in any event, since there is
absolutely not a shred of historical evidence that the United States ever ratified those
sales/treaties in accordance with federal treaty-ratification procedures.
counterclaim similarly fails to imply, let alone plead any facts to plausibly suggest, that
the Treaty of Canandaigua failed to recognize the Cayuga reservation.44
The County similarly argues that based upon the Supreme Court’s decision in
Sherrill, concerning laches, “the County may rightfully argue that reservation status for
purposes of the federal and state statutes at issue45 . . . only includes land over which
the Nation exercises sovereign authority, and not the Subject Properties.”46 However,
this argument is also not pleaded in, or reasonably implied by, the counterclaim. The
existence of a reservation, sovereign authority over land, and laches are three distinct
issues, of which the counterclaim mentions only the first.
As the Court has already explained, the counterclaim, which is succinct, is based
upon the contention that the Treaty of Buffalo Creek disestablished the Cayuga
reservation. See, Answer to Amended Complaint with Counterclaim at p. 7, ¶ 43 (“There
is a present controversy over
whether the Nation’s reservation has been
disestablished.”). The Cayuga Nation tailored its motion to address that claim, and the
County cannot evade that motion now by claiming that it pled something other than
See, Answer to Amended Complaint with Counterclaim [#37], “Counterclaim,” at pp. 5-7
18 U.S.C. § 1151, NY RPTL § 454 and NY Indian Law § 6.
Def. Memo of Law [#40] at p. 18.
what it actually pled.47
The Court further points out that it conducted its sovereign immunity analysis
above based on the counterclaim as actually pleaded, and not on these new arguments.
The Cayuga Nation’s claim concerning the County’s ability to tax the properties is not
based on the tribe’s ability to exert sovereign authority over the land, but rather is based
upon the fact that the land is physically located within the historic reservation which has
not been disestablished. The Court found that the counterclaim was the mirror image of
such claim, and that the Cayuga Nation had therefore waived sovereign immunity from
suit as to that issue. To the extent that the County would attempt to plead these newlyraised claims, they would probably be barred by sovereign immunity, since they go
beyond mirroring the Cayugas’ claim.
The counterclaim fails to state an actionable claim.
Binding Supreme Court
precedent is clear that a reservation-disestablishment claim cannot succeed where
there is only ambiguous treaty language and mixed historical evidence of congressional
intent. As a matter of law, the 1838 Treaty of Buffalo Creek does not contain “a clear
textual signal that Congress intended to diminish the [Cayuga] reservation.”48
Consequently, Seneca County’s counterclaim could only succeed if there existed clear
and unequivocal historical evidence that Congress intended the treaty to disestablish
the Cayuga reservation. The Counterclaim does not allege any facts to suggest that
such evidence exists. Furthermore, for the reasons discussed above, it is clear that any
historical evidence on this point would be “mixed” at best. Accordingly, the counterclaim
The County has not requested permission to amend its counterclaim to assert these new
theories, and the Court would not be inclined to grant any such belated application at this point, for
various reasons including unjustifiable delay and futility.
Nebraska v. Parker, 136 S.Ct. at 1080.
necessarily fails as a matter of law.
Plaintiff’s application [#39] to dismiss Defendant’s counterclaim is granted, with
Dated: Rochester, New York
April 30, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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