Despite much speculation at Indianz, and grandstanding by Judge Cabranes and the anti-tribal parties, it seems very unlikely the Supreme Court will agree to grant a petition for cert in Oneida Indian Nation v. Madison County. To be sure, the question whether tribal sovereign immunity can prevent foreclosure actions against tribally-owned fee lands is certworthy, and there may already be a split in authority of sorts (the Second Circuit and the Mass. Supreme Judicial Court in a case involving the Aquinnah Wampanoag a few years back), but the Oneida case doesn’t seem to be the vehicle.
In short, this case is all but moot. And the Second Circuit nearly passed on the underlying question because the land in question may soon go into trust (perhaps after a few years litigation). Consider part of the early portion of the majority opinion in OIN v. Madison County:
Since this Court heard oral argument in this matter, there have been several developments that affect the practical implications of this Court’s decision on Madison and Oneida Counties. While these developments do not render moot any of the issues before this Court on appeal, we think it useful to describe them briefly.
In a Record of Decision issued on May 20, 2008, in response to the OIN’s application, the Department of the Interior determined that it would take 13,003.89 acres of the OIN-owned land at issue in this appeal into trust, pursuant to 25 U.S.C. § 465 and 25 C.F.R. Part 151. See Department of the Interior, Record of Decision, May 20, 2008 (“Record of Decision”). Notice of this decision was published in the Federal Register on May 23, 2008. 73 Fed.Reg. 30144. This land will no longer be subject to state or local taxation. 25 U.S.C. § 465. As a result, only approximately 4,000 of the 17,000 acres of property originally at issue in this case will remain subject to state and local taxation in the future.
In connection with the land trust, in order to satisfy the trust regulations, the OIN has posted letters of credit securing the payment of all taxes, penalties, and interest determined by the courts to be due on the land at issue and has agreed to supplement or replace those letters to secure payment of any additional penalties and interest that may accrue while litigation concerning the trust decision is pending. Record of Decision at 53. These letters cover substantially all taxes, penalties, and interest assessed on all of the OIN-owned property at issue in this case, including those parcels that the Department of the Interior has decided not to take into trust. Accordingly, notwithstanding this Court’s decision on this appeal, it appears that the Counties will receive back payment of all taxes, penalties, and interest due on the property at issue in this lawsuit. Despite this development and the practical implications it has for the parties in this case, we reiterate that it does not render moot any of the issues raised on nor affect our consideration of this appeal.
Even if the counties and the State prevail in their ongoing challenges to the Oneida fee to trust decision (and that’s a tough road), the Supreme Court will be unhappy with the procedural posture of a petition arising out of this foreclosure action. Moreover, it might be that the only way for the case not to be moot in the near future is if the counties refuse to accept payment for back taxes from the tribe, surely an act of bad faith.