Property Law Developments—Joseph William Singer

The Ninth Circuit has held that the Kawaiisu (a tribe that is not recognized by the federal government) cannot assert title to its ancestral lands because it failed to file a claim under the California Land Claims by the 1851 deadline. Failure to do so, the court held, extinguished tribal title, apparently without compensation. Nor could it base its claim on a later treaty because that treaty (like other treaties with California tribes) was never ratified by Congress. Robinson v. Jewell, 2015 U.S. App. LEXIS 10446 (9th Cir. 2015).

The Supreme Court’s recent reaffirmation of the long-standing rule that that Indian nations have sovereign immunity from suit in the absence of waiver by the tribe or abrogation by Congress, Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024 (2014),  led the Second Circuit to reaffirm its earlier decision to deny a county the power to foreclose on tribal land for failure to pay state property taxes. Cayuga Indian Nation v. Seneca Cnty., 2014 WL 3746795 (2d Cir. 2014). While having a right without a remedy would seem to render the right meaningless, the oddity of this situation can be attributed to the vagaries of federal Indian law and casts doubt on the wisdom of earlier decisions that authorized the state to tax tribal land. For the earlier Second Circuit decision, see Oneida Indian Nation of N.Y. v. Madison Cnty., 605 F.3d 149 (2d Cir. 2010), vacated, 131 S.Ct. 704 (2011). The Supreme Court decision holding that tribal land is subject to state taxes at least when it was held by non-Indians in fee simple and bought back by the tribe even if it is within the original borders of tribal territory and the cession of land was never lawfully ratified by statute or treaty. City of Sherrill, NY v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005).

In another case in a long-running saga, the Patent and Trademark Office cancelled the federal registration for the “Washington Redskins” on the ground that the name is disparaging in violation of Section 2(a) of the Trademark Act of 1946, 15 U.S.C. §1052(a). Blackhorse v. Pro-Football, Inc., U.S. P.T.O. Canc. No. 92046185 (June 18, 2014).

The Cheyenne and Arapaho Tribes have allowed several same-sex couples to marry under tribal law. The tribal code is neutral with respect to the gender of persons who can get married and merely require one of the parties to be a tribal citizen. read article

Applying the standards set down by the Second Circuit in Oneida Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir. 2010, a federal district in New York affirmed that a county could not foreclose on tribal land for nonpayment of state property taxes on the ground that the tribe has sovereign immunity that it has not waived and that has not been abrogated by federal law. Cayuga Indian Nation of N.Y. v. Seneca County, 2012 U.S. Dist. LEXIS 117245 (W.D.N.Y. 2012).

President Barack Obama announced on December 16, 2010 that the United States would join more than 140 other countries in supporting the United Nations Declaration on the Rights of Indigenous Peoples. That Declaration supports the rights of indigenous peoples to protection of their property, cultures, and religious traditions, as well as guaranteeing self-determination. A detailed statement explaining U.S. support for the Declaration is available here.

In City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), the Supreme Court ruled that too much time had passed for the Oneida Indian Nation to assert sovereignty over land that was illegally taken from it by the state of New York in the early 19th century. Although the transfer of title from the tribe to the state violated the federal Trade and Intercourse Act, 25 U.S.C. §177, and thus was of no validity whatsoever and although no federal or state statute of limitations barred the tribe’s property claim against the state, the doctrine of laches was applied to deny the tribe sovereign powers over land it had repurchased from a non-Indian owner even though that land had been within its original reservation and those lands had never been taken by the United States – the only sovereign with the power to extinguish tribal title to the land. As a result, although the tribe had reunited title and possession by purchasing the land, the Supreme Court held the land to be subject to state property taxation.

When the tribe refused to pay property taxes on its land, two N.Y. counties brought tax foreclosure actions against the tribe and its lands. The Second Circuit ruled, in Oneida Indian Nation of New York v. Madison and Oneida County, 2010 WL 1659452, that the tribe’s sovereign immunity barred the lawsuit, making it impossible for the counties affirmatively to enforce their right to collect the taxes. The court did not mention an alternative ground for denying the foreclosure action: the Trade and Intercourse Act prohibits any transfer of title to tribal land without the consent of the United States. There is some doubt about whether the Act applies to land held in fee simple but the District Court in the Oneida case held that it did and was an alternative ground for denying the counties the power to proceed with the tax foreclosure case. See Oneida Indian Nation v. Oneida County, 432 F.Supp.2d 285, 292 (N.D.N.Y. 2006).

The Supreme Court took certiorari in the case, Madison County, N.Y. v. Oneida Indian Nation of New York, 2010 WL 2753782, 79 USLW 3062, 79 USLW 3220, 79 USLW 3226 (U.S. Oct 12, 2010), and federal Indian law specialists fear that the Court may choose an alternative ground to overrule the Court of Appeals decision. The Court may find the Oneida reservation to have been implicitly diminished even though no treaty or Act of Congress has formally taken those lands out of the reservation borders. In general, Congress must act explicitly to alter the borders of Indian country especially in a case like this in which Congress never ratified the arrangements by which New York took over Oneida lands.

On Nov 30, 2010, the Oneida Indian Nation wrote to the Supreme Court to announce that the tribe had formally waived sovereign immunity with regard to claims against it for unpaid property taxes. It did not waive other defenses it might have, especially its claims that the taxes were not authorized by state law.

In the late  19th century, the United States took lands from American Indian nations and transferred them to individual tribal members. Those lands were often managed by the federal government through the Bureau of Indian Affairs (BIA) which would arrange to lease the lands for grazing and mining purposes. The U.S. was supposed to pay the royalties to the Indian owners but often did not do so and over time many records were lost. Twenty years of litigation has ended with a settlement by which the US will pay $1.4 billion to class members (roughly $1000 per person) and in addition establish a $2 billion fund for the voluntary buy-back and consolidation of fractionated land interests. Read Interior Department press release. Here is the Turtletalk report on the settlement.

The Nisga’a Lisims government (a First Nation located in British Columbia, Canada) approved a law allowing individual Nisga’a citizens to obtain title to previously communally owned land in a form that makes that property freely alienable. Read article

A federal court in California refused to allow the Native Village of Kivalina to sue 24 energy and utility companies for causing global warming and causing environmental changes that may well require the entire village to relocate. The court held, in Native Village of Kivalina v. Exxon Mobil Corp., 2009 WL 3326113 (N.D. Cal. 2009), that the question was nonjusticiable because it was impossible to prove causation.

However, both the Second and Fifth Circuits have recently allowed cases to proceed which claim that defendants contributed to global warming and thus caused a public nuisance and/or violated the plaintiffs’ property rights protected by a variety of doctrines, including trespass, negligence, and private nuisance. See Comer v. Murphy Oil USA, 2009 WL 3321493 (5th Cir. 2009); Connecticut v. American Electric Power Co., Inc., 582 F.3d 309 (2nd Cir. 2009).