Oneida Indian Nation of Wisconsin v. New York

On Petition for Rehearing. The Oneida Indian Nation of Wisconsin seeks leave to file a petition for rehearing out of time. It urges that our opinion has permitted the intervenor to assert claims based on Indian tribal law over which the district courts lack jurisdiction and has ignored the plaintiffs' sovereign immunity from cross-claims by the intervenors. Neither apprehension is well founded. The intervenor has been allowed to participate as a party primarily to guard against encountering the stare decisis effect of a decision in favor of the defendants and also to assert its own claims against the defendants to the extent that such claims are grounded on federal law. It remains to be determined on remand to what extent, if any, the intervenor is entitled to have the district court interpret tribal law. Sovereign immunity is not a barrier to such intervention because, unlike the situation in United States v. Dry Dock Savings Institution, 149 F.2d 917 (2d Cir. 1945), the intervenor's claims do not necessarily entail the granting of relief against the plaintiffs. Sovereign immunity does not bar the intervenor from asserting its own federal law claim against the defendants, even though successful prosecution of the intervenor's claim might have at least stare decisis effect on the plaintiffs' claim. Whether sovereign immunity might bar some aspects of the intervenor's claims for relief can better be decided upon remand after determination of the merits. See Atlantis Development Corp. v. United States, 379 F.2d 818, 829 n.34 (5th Cir. 1967).