Dana Leigh THOMPSON, Plaintiff-Appellant, v. COUNTY OF FRANKLIN and Bryon A. Varin, Treasurer of Franklin County, Defendants-Appellees, 314 F.3d 79

Judge WINTER concurs in a separate opinion. Judge SACK dissents in a separate opinion. VAN GRAAFEILAND, Senior Circuit Judge. On February 27, 1989, Larry Thompson conveyed by warranty deed to Dana Leigh Bush two parcels of land in Franklin County, New York, totaling approximately 68 acres. On an undisclosed date, Dana Leigh Bush became Dana Leigh Thompson, presumably the wife of Larry. When and where this marriage took place, we do not know. Dana contends, however, that the land in question is part of a St.

Regis Mohawk Indian Reservation and that, because she is a member of that tribe, she is not required to pay county taxes on the property. The district court, McCurn, J., disagreed. So do I. In short, I do not believe this is a case that permits of

summary disposition in Dana’s favor, as she contends. The record contains little information about Dana and Larry and their roles in the litigated processes. We are left largely in the dark concerning the nature of the property involved and'the people who populate it. Nevertheless, Dana commenced this action for a declaratory judgment in an effort to establish her claim and sought

summary judgment towards that end. In so doing, she carried “at a minimum the risk of non-persuasion, if not the actual burden of proof.” NRT Metals, Inc. v. Manhattan Metals (Non-Ferrous), Ltd., 576 F.Supp. 1046, 1052 n. 17 (S.D.N.Y.1983). By a process of osmosis from reading lengthy arguments, opinions and testimonial excerpts, I am convinced that living in the disputed area during the period at issue left much to be desired. Smuggling over the nearby’ Canadian border was rampant. Millions of dollars were involved. Conflicts between factions, involving both personal injuries and deaths, were constant.

Gambling was for high stakes and thus inherently dangerous. Judicial descriptions of the conditions that prevailed used such terms as “intensely disputed,” “ongoing discord,” “feuding factions,” “continuing strife,” and “procedural wrongdoing.” See Ransom v. Babbitt, 69 F.Supp.2d 141 (D.D.C.1999). In Thomas v.

United States, 141 F.Supp.2d 1185, 1202 (W.D.Wis.2001), the court described the situation as follows: After operating under a Three Chief System of government for almost two hundred years, the Saint Regis Mohawk Tribe conducted a referendum election to determine whether to adopt a tribal constitution with a three branch system (executive, judicial and legislative). Following the election, there was a dispute within the tribe whether a sufficient majority of the tribe had voted in favor of the referendum.

The tribe held additional referendum elections, the results of which indicated that the majority of the tribe believed that the original referendum had been certified improperly and that the new constitution lacked legal authority. Although the tribe had selected leaders for the Three Chiefs System, the Bureau of Indian Affairs continued to support the new constitution, recognize the three-branch government and provide federal funds to the new government only.

The three elected chiefs brought suit against United States officials under the Administrative Procedures Act, alleging that the defendants had refused wrongfully to recognize them as the tribe’s legitimate government leaders.

The district court held that the Bureau of Indian Affairs and Interior Board of Indian Appeals had “acted arbitrarily, capriciously, and contrary to law” refusing to review for themselves the intensely disputed tribal procedures surrounding the adoption of a tribal constitution, in crediting unreasonable decisions of a seemingly invalid tribal court, and in refusing to grant official recognition to the clear will of the Tribe’s people with regard to their government.

A principal reason for the discord and strife seems to have been the activity of tribal members known as the “Warriors”, who wanted to control the tribe, particularly its money-making activities such as smuggling and gaming. Apparently, both Larry and Dana belonged to this faction, and had problems with the police as a result of their activities as such. In the midst of the turmoil above described, Dana submitted her resignation from the Tribe.

The resignation, contained in a letter addressed to the tribe, stated: “To all whom these presents may come, be seen, or known, I, Dana Leigh Thompson, born on September 1, 1956, do renounce and abjure, including but not limited to, explicit or implied, citizenship, protection, jurisdiction, and representation of/by, including but not limited to, the St. Regis Mohawk Tribal Council, the Peoples Government, the Mohawk Council of Akwesasne, the Mohawk Nation Council, the Kanienkehaka Nation Council, the United States of America, Canada, the Iriquois Confederacy, Great Britain, and the Assembly of First nations.

In furtherance of this declaration, I adamantly request that my name be immediately removed from the citizenship/membership roll of, including but not limited to, the Saint Regis Mohawk Tribe, the Mohawks of Akwesasne, the Peoples Government, and the Mowhawk Nation. Be it fully understood that I have repudiated all, including but not limited to, citizenship, protection, jurisdiction, and representation of/by the Mowhawk Councils of Akwesasne, as well as others herein stated.

Recent actions, agreements, negotiations, and adverse mannerisms are construed as attempts to, extinguish, apply treaty to, limit, impede, and/or otherwise restrict the existent Aboriginal Community of Akwesasne from exercising their inherent sovereign powers and sovereign right to independently organize, as explicitly stipulated by the definitive principles embodied within the Two Row Wampum, including but not limited to, the right to enjoy a common and peaceful coexistence.

I did not participate, and will not, including but not limited to, condone, ratify, sanction, or agree to, the actions of the aforementioned sovereign or quasi-sovereign government entities, nor will I be bound by their actions. I further state and declare, that I am resident in Akwesasne and reside on Akwesasne Territory.” (App. at 203.) I believe that, in view of the tribal disarray described above, the issue of whether the letter containing Dana’s resignation was delivered to and accepted by a constitutionally authorized tribal officer or officers merited more proof than was offered. See, e.g., Askew v.

Hargrave, 401 U.S. 476, 478-79, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). I also believe that the proper disposition of Dana’s claim requires more information concerning the roles that Dana and Larry played in the legal maneuvering that led to Larry’s acquisition of title and his conveyance to Dana. In layman’s terms, we should know with what we are dealing here. Some information concerning Larry’s background and prior conduct would be helpful in arriving at a correct conclusion.

Although I believe that the effect of Dana’s purported resignation cannot be determined on motion, I nonetheless conclude that the land in question is subject to taxation. The deeds to and from Larry contain no restrictions on alienation, and there are no extraneous restrictions between the parties. In any event, any other restrictions could have been imposed only by Congress. The parties agreed, however, that there were no such restrictions. The parties both agree that Ms. Thompson’s land is freely alienable: The CouRt: Okay.

It seems to be apparent throughout your — both briefings that you have given the Court on both sides that there are no restrictions on alienability. Ms. LocKlear: That is correct, Your Honor. The CouRt: Do either party claim such a restriction? Ms. LocKlear: No, Your Honor. The Court: Mr. Peebles, you don’t? Mr. Peebles: No, Your Honor. (App. at 115.) As Justice Thomas, writing for a unanimous court, stated in Cass County v.

Leech Lake Band of Chippewa Indians, 524 U.S. 103, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998), “once Congress has demonstrated ... a clear intent to subject the land to taxation by making it alienable, Congress must make an unmistakably clear statement in order to render it nontaxable.” Id. at 114, 118 S.Ct. 1904 (citing County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 263, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992) (citing Goudy v. Meath, 203 U.S. 146, 149, 27 S.Ct. 48, 51 L.Ed. 130 (1906))).

Here, we find Congressional intent to make land alienable in the form of the Indian Nonintercourse Act (INA), which is an “act of Congress” in every sense of that term. The INA provides that “[n]o purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” 25 U.S.C. § 177.

Surely the converse of this statement is true, i.e., if such a conveyance is made by treaty or convention entered into pursuant to the Constitution, then that conveyance is otherwise valid. In Goudy, the Supreme Court recognized that: the purpose of the restriction upon voluntary alienation is protection of the Indian from the cunning and rapacity of his white neighbors, and it would seem strange to withdraw this protection and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it from taxation.... Id. at 149, 27 S.Ct. 48.

The INA is just such a restriction upon voluntary alienation, and it would be equally “strange” to hold that a conveyance governed by, and in compliance with, the INA did not also act to permit state taxation of the land so conveyed. See also Yakima, 502 U.S. at 263, 112 S.Ct. 683 (“it was the alienability of the allotted lands ... that the Court found of central significance”). In light of the unique relationship between Congress and Indian land, see generally Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823) (mem.), such a conveyance clearly evinces federal cession of jurisdiction.

Accordingly, land made alienable by a conveyance governed by and in compli-anee with the INA is land made alienable by Congress, and hence taxable. Nothing in Thompson v. County of Franklin (Thompson I), 15 F.3d 245 (2d Cir.1994), is to the contrary. In deciding only Dana’s standing to challenge Franklin County’s taxation of her property in that case, we held that the INA, which addresses only title, had no relevance because the issue of title and the question of jurisdiction were legally distinct. See, e.g., Oneida County, N.Y. v. Oneida Indian Nation of N.Y.

State, 470 U.S. 226, 240, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (“the Nonin-tercourse Acts simply ‘put in statutory form what was or came to be the accepted rule — that the extinguishment of Indian title required the consent of the United States.’” (quoting Oneida Indian Nation of N.Y. State v. County of Oneida, N.Y., 414 U.S. 661, 678, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974))); Mohegan Tribe v. Connecticut, 638 F.2d 612 (2d Cir.1980) (detailing history of INA). Thus, as we held in Thompson I, that Plaintiff is an individual Indian and not an Indian tribe does not affect her standing to challenge taxability.

Nor does this mark a departure from our prior cases that establish the elements of a prima facie case based on a violation of the Act. See, e.g., Canadian St. Regis Band of Mohawk Indians v.

New York, 146 F.Supp.2d 170, 185 (N.D.N.Y.2001) (“In order to establish a prima facie case based on a violation of the Act, ‘a plaintiff must show that (1) it is an Indian tribe, (2) the land is tribal land, (3) the United States has never consented to or approved the alienation of the this [sic ] tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned.’ ”) (quoting Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58 (2d Cir.1994)).

Plaintiffs case is not based on a violation of the Act, i.e., she is not suing “under the Act.” In fact, as she points out, it would be ludicrous for her to assert such a violation, because the validity of her own title depends on compliance, rather than noncompliance, with the Act. After 1796, land within the boundaries of the original St. Regis reservation could not have been alienated absent compliance with the Indian Nonintercourse Act.

The parties’ concession concerning absence of restrictions necessarily operates as a stipulation that the conveyances leading to Dana’s own title necessarily complied with that Act. See Sinicropi v. Milone, 915 F.2d 66,68 (2d Cir.1990). Accordingly, her land is taxable by Franklin County. . The Act, “also known as the Indian Trade and Intercourse Act, was enacted by the first Congress in 1790 and has been reenacted in substantially the same form by subsequent Congresses to the present date.” Canadian St. Regis Band of Mohawk Indians v. New York, 146 F.Supp.2d 170, 174 n. 2 (N.D.N.Y.2001) (McCurn, J.).

See also Lummi Indian Tribe v. Whatcom County, 5 F.3d 1355, 1358 (9th Cir.1993) ("The Act has not changed materially since its passage, in 1790, at the insistence of President Washington and Secretary of War Henry Knox.” (parallel citations omitted)). . The Cass County opinion suggests this very result: The Leech Lake Band and the United States, as amicus, also argue that the parcels at issue here are not alienable — and therefore not taxable — under the terms of the Indian Nonintercourse Act....

Because the parcels at issue here are not alienable — and therefore not taxable — under the terms of the Indian Nonintercourse Act, which provides: "No taxation if it remains freely alienable", and because it was not addressed by the Court of Appeals, we decline to consider it for the first time in this Court. 524 U.S. at 115 n. 5, 118 S.Ct. 1904. Given that Justice Thomas, writing for a unanimous Court, had just implied that INA alienability equals taxability, the sentence in quotations remains at least anomalous. . Nor is Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984).

There, the Court held that "[ojnee 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 indicates otherwise.” 465 U.S. at 470, 104 S.Ct. 1161. Our holding is simply that, consistent with Goudy and Cass County, compliance with the INA is such a congressional "indication.”