Note, The Power to Tax Is the Power to Foreclose: Reuniting Law and Logic in Tribal Immunity from Suit

Saitta examines a doctrinal inconsistency in federal Indian law following the Second Circuit's decision in Oneida Indian Nation of New York v. Madison County & Oneida County, New York. The Oneida Indian Nation acquired land over 200 years ago and operates commercial enterprises including casinos, hotels, golf courses, and convenience stores. When the Nation failed to pay property taxes on non-reservation land, Madison and Oneida Counties initiated foreclosure proceedings. The Nation argued it was immune from suit based on tribal sovereign immunity. The Second Circuit drew a distinction: while tribes possess sovereign authority over reservation lands (and thus cannot be sued to enforce collection of taxes on such land under City of Sherrill v. Oneida Indian Nation), tribes do not enjoy sovereign immunity from suit in property-based foreclosure actions. This distinction between in personam actions (to which tribal immunity applies) and in rem/property actions (to which it does not) creates a logical problem. Saitta argues that the Second Circuit's reasoning—that the power to tax includes the power to foreclose—has devastating consequences for local governments, denies them necessary tax revenues, and encourages disregard for legitimate enforcement actions. She contends that tax assessment and tax enforcement are flip sides of the same power, such that allowing foreclosure immunity undermines government functioning.

Topics: Federalism · Administrative Law · Constitutional Law · Civil Rights

Keywords: tribal immunity from suit · Oneida Indian Nation · property taxes · foreclosure · sovereign immunity · Kiowa Tribe · reservation lands · in personam jurisdiction