No. 99-269
In the Supreme Court of the United States
STATE OF NEW YORK, ET AL., PETITIONERS
v.
SENECA NATION OF INDIANS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
DAVID C. SHILTON
SAMUEL C. ALEXANDER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether, in a suit originally brought against a State by an Indian Tribe,
the Eleventh Amendment precludes the Tribe's continued participation as
a party after the United States has intervened as a plaintiff.
In the Supreme Court of the United States
No. 99-269
STATE OF NEW YORK, ET AL., PETITIONERS
v.
SENECA NATION OF INDIANS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-5a) is reported at 178
F.3d 95. An opinion of the district court in the Cuba Lake case (Pet. App.
9a-44a) is reported at 26 F. Supp.2d 555. An order of the district court
in the Grand Island case (Pet. App. 57a-60a) adopting the magistrate judge's
report and recommendation (Pet. App. 45a-56a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on May 17, 1999. The petition
for a writ of certiorari was filed on August 16, 1999 (a Monday). The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
This case arises from two consolidated actions (the Cuba Lake and Grand
Island cases) to enforce the restrictions of the Trade and Intercourse Act,
25 U.S.C. 177, which prohibits and renders void any purchase or other acquisition
of land from an Indian Tribe without the approval of the United States.
See County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 232 (1985).
The suits were filed in 1985 and 1993, respectively. Respondent Seneca Nation
(Nation) filed both the Cuba Lake and Grand Island suits, asserting that
the State of New York had acquired tribal land without the requisite congressional
approval, rendering the transactions void. Respondent Tonawanda Band of
Indians (Band) intervened in the Grand Island case. In 1998 the United States
was granted leave to intervene in both cases in support of the Nation and
the Band (collectively, the Tribes).
Despite the intervention of the United States, petitioners asserted that
the Eleventh Amendment bars the Tribes from continuing to participate as
parties. The district courts in both cases rejected that contention. Pet.
App. 20a-23a, 51a-53a, 59a. Petitioners filed interlocutory appeals of those
orders, and the court of appeals affirmed. Id. at 1a-5a.
1. a. The Nation filed the Cuba Lake suit in 1985. The complaint alleged
that the State had violated the Trade and Intercourse Act by acquiring (through
its power of eminent domain) approximately 50 acres of land (subject lands)
reserved to the Nation by the United States. Pet. App. 13a. Although the
suit was filed in 1985, the parties did not file cross-motions for summary
judgment until August 1994. See id. at 12a. The proceedings were stayed
in 1996, prior to a decision on the summary judgment motions, pending this
Court's resolution of Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997).
Pet. App. 12a. In July 1997, the district court issued a supplemental briefing
schedule for summary judgment motions. Ibid. In August 1997, the United
States filed a motion to intervene on behalf of the Nation and a motion
for summary judgment. Ibid. The district court granted the United States'
motion to intervene in January 1998. Ibid.
The district court subsequently issued an order granting the plaintiffs'
motion for summary judgment on liability and denying the defendants' cross-motion
for summary judgment. Pet. App. 9a-44a. The court first held that the Eleventh
Amendment does not bar the Nation's continued participation in the suit.
Id. at 20a-23a. It explained that the Eleventh Amendment does not apply
to suits by the United States. Id. at 20a-21a. In light of the intervention
by the United States, the court determined, the Nation's continued participation
"does not further compromise the State's sovereign immunity."
Id. at 23a. The court further held that the State's acquisition of the subject
lands violated the Trade and Intercourse Act. Id. at 40a. The damages phase
of the case continues in the district court.
b. The Grand Island suit was filed by the Nation in August 1993. The Nation
alleged that more than 18,000 acres of land purchased by the State in 1815
were acquired in violation of the Trade and Intercourse Act. The Band intervened
in the suit as a plaintiff. Pet. 6-7.
In August 1996, the State moved to dismiss the Tribes' claims based on the
Eleventh Amendment. Pet. App. 46a. The following month, the magistrate judge
stayed the proceedings pending this Court's decision in Coeur d'Alene. Id.
at 46a-47a. Following the decision in Coeur d'Alene, the Tribes sought and
were granted leave to amend their complaints. Id. at 47a. The State subsequently
refiled its motion to dismiss the Tribes' complaints on Eleventh Amendment
grounds. Ibid.
The United States sought leave to intervene in March 1998. Pet. App. 47a.
The court granted that motion the following month. Ibid. In May 1998, the
defendants moved to dismiss the United States' complaint on the ground that
the statute of limitations in 28 U.S.C. 2415 precluded the action. Pet.
App. 47a-49a. Although Section 2415 does not apply to "an action to
establish the title to, or right of possession of, real or personal property,"
28 U.S.C. 2415(c), the defendants argued that because the United States
did not expressly seek ejectment or a declaratory judgment in its prayer
for relief, the action was solely a claim for damages and was therefore
barred by the limitations period (six years plus 90 days) set forth in Section
2415(b). Pet. App. 49a.
The district court adopted the recommendation of the magistrate judge (Pet.
App. 45a-54a) and denied the defendants' motion to dismiss. The court rejected
the defendants' argument that the statute of limitations provided a complete
defense against the United States' claims,1 and it denied the State's motion
to dismiss the Tribes' complaints based on the Eleventh Amendment. See id.
at 58a-59a. The court did, however, "require the United States to file
an amended complaint-in-intervention which clearly states the relief being
sought * * * in this action." Id. at 59a. The United States subsequently
filed an amended complaint seeking a declaration that the Tribes have a
right to possession of the subject lands; damages; ejectment against the
State; and all other remedies that are just and proper. See United States'
First Amended Complaint in Intervention, Seneca Nation v. New York, No.
93-CV-0688A (W.D.N.Y. Dec. 18, 1998). The liability phase of the case continues
in the district court.
2. The State filed interlocutory appeals from both district court orders.
The court of appeals consolidated the appeals and "affirm[ed] the orders
of the district court denying the State of New York's Eleventh Amendment
defenses." Pet. App. 4a-5a. The court "note[d] that the State
of New York retains its Eleventh Amendment immunity to the extent that the
[Tribes] raise claims or issues that are not identical to those raised by
the United States." Id. at 5a (citing Arizona v. California, 460 U.S.
605, 614 (1983)).
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court or of any other court of appeals. Further review
is not warranted.
1. The Eleventh Amendment does not bar the United States from bringing an
action in federal court against a State. See, e.g., Seminole Tribe v. Florida,
517 U.S. 44, 71 n.14, (1996); United States v. Mississippi, 380 U.S. 128,
140 (1965). It is also clear that the United States may bring an action
to protect the property interests of federally recognized Indian Tribes
and their members. See, e.g., Blatchford v. Native Village of Noatak, 501
U.S. 775, 783 (1991) (discussing United States v. Minnesota, 270 U.S. 181,
195 (1926)). The petition for a writ of certiorari does not contest the
United States' right to intervene in these cases or otherwise call into
question the government's authority to pursue the litigation. Rather, petitioners
contend that the Tribes' continued participation in these actions violates
the Eleventh Amendment.
As the court of appeals recognized (Pet. App. 5a), petitioners' Eleventh
Amendment argument is foreclosed by this Court's decision in Arizona v.
California, 460 U.S. 605 (1983). That case involved an original action to
determine the respective water rights of Arizona, California, and Nevada
in the lower basin of the Colorado River. The United States intervened in
the suit to assert water rights for federally reserved lands, including
Indian reservations, that are dependent on the Colorado River for their
water. Id. at 608-609. The Special Master granted five Tribes leave to intervene
and subsequently found that the Tribes were entitled to additional water
rights. Id. at 612-613. The States filed objections to the Special Master's
report, including an objection that "the Tribes' participation violates
the Eleventh Amendment." Id. at 614.
This Court rejected the States' Eleventh Amendment argument. The Court "[a]ssum[ed],
arguendo, that a State may interpose its immunity to bar a suit brought
against it by an Indian tribe." Arizona v. California, 460 U.S. at
614.2 The Court held, however, that in light of the United States' participation
in the suit, "the States involved no longer may assert that [Eleventh
Amendment] immunity with respect to the subject matter of this action."
Ibid. The Court explained:
The Tribes do not seek to bring new claims or issues against the States,
but only ask leave to participate in an adjudication of their vital water
rights that was commenced by the United States. Therefore, our judicial
power over the controversy is not enlarged by granting leave to intervene,
and the States' sovereign immunity protected by the Eleventh Amendment is
not compromised.
Ibid.
The rationale of Arizona v. California is equally applicable to cases, such
as these land claims, in which the United States has intervened in an action
initially brought by Tribes. See Pet. App. 22a, 53a. The court of appeals'
decision in this case is correct and is consistent with the ruling of the
only other court of appeals that has addressed the question. See Mille Lacs
Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 912-913 (8th Cir. 1997),
aff'd on other grounds, 526 U.S. 172 (1999)3; Pet. 10 n.2.4
2. Petitioners contend (Pet. 14-16) that the decision of the court of appeals
is inconsistent with this Court's rulings in Pennhurst State School &
Hospital v. Halderman, 465 U.S. 89 (1984), and County of Oneida v. Oneida
Indian Nation, 470 U.S. 226 (1985). That contention is without merit.
The private plaintiffs in Pennhurst asserted state-law claims for injunctive
and monetary relief against state officials. The United States was also
a plaintiff in the case. 465 U.S. at 92.5 The Court rejected the private
plaintiffs' contention that "the presence of the United States as a
plaintiff * * * remove[d] the Eleventh Amendment from consideration."
Id. at 103 n.12. The Court explained that
the United States' presence in the case for any purpose does not eliminate
the State's immunity for all purposes. For example, the fact that the federal
court could award injunctive relief to the United States on federal constitutional
claims would not mean that the court could order the State to pay damages
to other plaintiffs. In any case, we think it clear that the United States
does not have standing to assert the state-law claims of third parties.
For these reasons, the applicability of the Eleventh Amendment to respondents'
state-law claim is unaffected by the United States' participation in the
case.
Ibid.
Thus, Pennhurst simply makes clear that the presence of the United States
as a plaintiff does not affect a State's Eleventh Amendment immunity from
private claims different from those pursued by the United States itself.
Consistent with that principle, the court of appeals in the instant case
observed that "the State of New York retains its Eleventh Amendment
immunity to the extent that the [Tribes] raise claims or issues that are
not identical to those raised by the United States." Pet. App. 5a.
But nothing in Pennhurst suggests that the Eleventh Amendment bars the Tribes'
continued participation as parties with respect to the precise claims advanced
by the federal government.
Oneida is even more clearly inapposite. In that case, counties named as
defendants in a tribal land suit filed a third-party complaint for indemnification
against the State of New York. This Court held that the third-party complaint
was barred by the Eleventh Amendment. 470 U.S. at 251. The United States
was not a party to the case, however, and the Court therefore had no occasion
to consider the application of the Eleventh Amendment to suits in which
private parties assert claims identical to those advanced by the federal
government.
3. Petitioners contend (Pet. 19) that the principle announced in Arizona
v. California is inapplicable here because the United States intervened
in the Cuba Lake and Grand Island cases some years after they were commenced.
Petitioners assert that "the litigation remains at the instance and
under the control of the tribal plaintiffs who commenced it" (Pet.
19); that the Tribes "continue to direct the litigation despite the
belated intervention of the United States" (Pet. 21); and that "the
[Tribes], if they are allowed to continue as parties, will have a substantial
and likely dispositive say in the conduct of the litigation against New
York, in contravention of New York's sovereign immunity under the Eleventh
Amendment" (ibid.). Those assertions are without basis.
Because the State retains its immunity with respect to tribal "claims
or issues that are not identical to those made by the United States"
(Pet. App. 5a), the United States will control the future conduct of this
litigation. The Tribes' right to assert the prerogatives of parties (e.g.,
submitting interrogatories, calling witnesses, etc.) may complicate the
litigation to some degree, but the Tribes' participation does not alter
the suit's fundamental character as one by the United States, and it does
not "enlarge[]" the federal courts' "judicial power over
the controversy." Arizona v. California, 460 U.S. at 614.6
The rule that States have no Eleventh Amendment immunity against the United
States presupposes that federal officials in their conduct of litigation
against state defendants will faithfully seek to pursue the national interest.
Here the United States intervened to further the national interest in protecting
tribal lands and treaty rights that are alleged to have been taken in violation
of federal law. Petitioners' argument appears to rest on the implicit premise
that the federal officials charged with conducting this litigation have
failed and/or will fail to exercise independent judgment with regard to
the claims and issues to be presented to the courts below. Petitioners make
no effort to defend that proposition, however, which is wholly unsupported
either by the United States' conduct of this litigation or by the government's
approach to Indian cases generally. This Court "generally accord[s]
Government records and official conduct a presumption of legitimacy,"
United States Dep't of State v. Ray, 502 U.S. 164, 179 (1991), and petitioners
have identified no basis for departing from that presumption here.
In addition, petitioners have wholly failed to explain how reversal of the
court of appeals' ruling would alleviate the problem that they believe exists.
Although petitioners characterize the government's intervention as "belated"
(Pet. 21), they do not seek dismissal of the United States' claims. If petitioners
were correct in believing that the federal officials responsible for conducting
this litigation had placed themselves under the direction of the Tribes,
exclusion of the Tribes as additional parties would not reduce the Tribes'
effective control over the government's litigation decisions.
4. As the tribal respondents explain (Br. 9-11), the sequence of events
that culminated in the United States' intervention in these cases was largely
the result of prior uncertainty regarding the ability of Indian Tribes to
pursue land claims against unconsenting States. This Court's decisions in
Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997); Seminole Tribe v. Florida,
517 U.S. 44 (1996); and Blatchford v. Native Village of Noatak, 501 U.S.
775 (1991), have substantially dispelled that uncertainty. The fact pattern
presented here is therefore unlikely to recur with any frequency.7
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
DAVID C. SHILTON
SAMUEL C. ALEXANDER
Attorneys
NOVEMBER 1999
1 The court referred to the magistrate judge the question whether "the
statute of limitations * * * bars or limits the recovery of money damages
by the United States." Pet. App. 59a.
2 The Court has since held that the States retain their Eleventh Amendment
immunity in suits brought by Indian Tribes. Blatchford, 501 U.S. at 779-782.
3 The State of Minnesota did not seek review in this Court of the Eighth
Circuit's Eleventh Amendment ruling. See 98-1337 Pet. at i, Minnesota v.
Mille Lacs Band of Chippewa Indians, supra.
4 Petitioners suggest that the rule announced in Arizona v. California should
be limited to original jurisdiction cases, on the ground that the Court's
decision in that case was "premised on its longstanding practice, apparently
undertaken without analysis of the Eleventh Amendment immunity issues involved,
of allowing private parties to intervene in original proceedings before
the Court." Pet. 20. That argument is without merit. The Court in Arizona
v. California expressly considered and rejected the States' Eleventh Amendment
objection to the Tribes' intervention. 460 U.S. at 614. The Court explained
that its "judicial power over the controversy is not enlarged by granting
leave to intervene, and the States' sovereign immunity protected by the
Eleventh Amendment is not compromised." Ibid. Nothing in the Court's
analysis suggests that the propriety of the Tribes' request to intervene
depended on the fact that the case fell within this Court's original jurisdiction,
and nothing in Article III or the Eleventh Amendment supports such a distinction.
5 Although this Court's opinion in Pennhurst does not describe the claims
of the United States, the initial court of appeals opinion in the case indicates
that the government's complaint was limited to federal-law claims for injunctive
relief. See Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84,
89, 90-92 (3d Cir. 1979), rev'd, 451 U.S. 1 (1981).
6 Taken to its logical conclusion, petitioners' argument could suggest that
non-federal parties may not appear even as amici curiae in suits by the
United States against a State, since the process of responding to arguments
made by an amicus curiae will complicate the litigation to some degree.
If (as we assume) petitioners' theory does not sweep so broadly, the practical
effect of their position would be to constitutionalize the distinctions
made in federal rules and practice between the prerogatives of parties and
those of amici. In our view, so long as the Tribes do not seek to bring
before the court claims or issues not raised by the United States, the precise
nature of their participation raises no issue of constitutional dimension.
7 Contrary to the suggestion of the amici States (Br. 7-9), there is no
reason to hold the petition in this case pending this Court's decision in
Vermont Agency of Natural Resources v. United States ex rel. Stevens, No.
98-1828 (to be argued Nov. 29, 1999). The question in that case is whether
the United States' failure to take over the conduct of a qui tam suit against
a state agency requires that the suit be dismissed on the basis of the Eleventh
Amendment. Here, by contrast, the United States has intervened to prosecute
the suit, and the State retains its immunity from any claims different from
those advanced by the government.
The amici States' account (see Br. 6) of the government's filing in Robinson
v. Kansas, No. 99-1193-JTM (D. Kan.), is significantly misleading. Pursuant
to 28 U.S.C. 2403(a), the United States intervened in that case to defend
the constitutionality of the abrogation of state sovereign immunity under
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., and Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. The government did
not contend that its intervention transformed the suit into one brought
by the United States. Rather, we argued that the statutory provisions authorizing
private suits against state defendants are a permissible exercise of Congress's
power under Section 5 of the Fourteenth Amendment. See United States' Memorandum
in Support of Intervention and in Opposition to Defendants' Motion to Dismiss
Concerning the Constitutionality of Title VI and Section 504, at 3, Robinson
v. Kansas, supra (filed Sept. 15, 1999). Nothing in our filing in that case
suggests that "the States' immunity to private suits will be overcome
whenever the United States lends its name to otherwise private litigation"
(Amici Br. 6).