Miller Stockbridge brf spe apx Layout 1

IN THE

United States Court of AppealsFOR THE SECOND CIRCUIT

STOCKBRIDGE-MUNSEE COMMUNITY,

Plaintiff-Counter-Defendant-Appellant,v.

STATE OF NEW YORK, MARIO CUOMO, as Governor of the State of New York, NEW

YORK STATE DEPARTMENT OF TRANSPORTATION, FRANKLIN WHITE, as Commissioner of

Transportation, MADISON COUNTY, THE COUNTY OF MADISON NEW YORK, ONEIDA

(Additional Caption On the Reverse)

>> >>

Don B. Miller

DON B. MILLER, P.C.

1305 Cedar Avenue

Boulder, Colorado 80304

303-545-5533

and

Justin E. Driscoll, III

BROWN & WEINRAUB, PLLC

233 Broadway

New York, New York 10279

212-566-4600

Attorneys for Plaintiff-Counter-Defendant-AppellantStockbridge-Munsee Community

On Appeal from the United States District Courtfor the Northern District of New York (Albany)

13-3069-CV

BRIEF FOR PLAINTIFF-COUNTER-

DEFENDANT-APPELLANT STOCKBRIDGE-MUNSEE

COMMUNITY WITH SPECIAL APPENDIX

Case: 13-3069 Document: 40-1 Page: 1 11/15/2013 1093891 90

COUNTY, NEW YORK, TOWN OF AUGUSTA, NEW YORK, TOWN OF LINCOLN, NEW YORK,

VILLAGE OF MUNNSVILLE, NEW YORK, TOWN OF SMITHFIELD, NEW YORK, TOWN OF

STOCKBRIDGE, NEW YORK, TOWN OF VERNON, NEW YORK,

Defendants-Counter-Claimants-Appellees,

and

ONEIDA INDIAN NATION OF NEW YORK,

Defendant-Intervernor-Appellee.


TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 1

STATEMENT OF THE CASE .................................................................................. 2

STATEMENT OF FACTS ........................................................................................ 3

1. Historical Background ........................................................................... 3

2. The Proceedings Below ......................................................................... 8

SUMMARY OF THE ARGUMENT ...................................................................... 10

ARGUMENT ........................................................................................................... 15

Standard of Review .................................................................................................. 15

I. The District Court Erred in Dismissing Stockbridge’s

Claims Against Intervenor-Defendant Oneida Indian Nation

on the Ground of Tribal Sovereign Immunity. .............................................. 16

II. The Sherrill Equitable Defense Does Not Bar Stockbridge’s

Claims against the Nation. ............................................................................ 24

III. The District Court Erred in Applying the Sherrill Defense

to Bar the Tribe’s Claims Against the County and Municipal

Defendants. .................................................................................................... 35

A. The District Court Erred in Following Cayuga and

Oneida Because they Substitute the Court of Appeals’

Judgment for Congress’ Express Judgment that an

Action to Vindicate Possessory Rights Should Not Be

Barred by Any Time-Based Defense. ................................................. 36


ii

B. Cayuga and Oneida Stand in Irreconcilable Conflict

with Oneida II and Sherrill, Improperly Extending Sherrill

to Bar a Claim and All Remedies, Where Sherrill had

Expressly Left Oneida II Undisturbed and Confined Its

Holding to Employing the Laches-Like Defense to

Bar a Particular Equitable Remedy. .................................................... 38

IV. Stockbridge’s Claims Against State Officials are Not Barred

by the Eleventh Amendment. ........................................................................ 41

A. The District Court Erred in Failing to Apply the Rule that

Jurisdiction is Determined at the Time an Action is Filed. ................. 41

B. A Straightforward Inquiry into Whether an Ongoing

Violation of Federal Law is Alleged and the Relief Sought

is Properly Characterized as Prospective Establishes that

the Eleventh Amendment Does Not Bar Stockbridge’s

Ex Parte Young Officers Suit. ............................................................. 45

CONCLUSION ........................................................................................................ 53


iii

TABLE OF AUTHORITIES

CASES:

Agostini v. Felton, 521 U.S. 203 (1997) .................................................................. 39

Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005) ............................................................. 39

Bank of Hemet v. United States, 643 F.2d 661 (9th Cir. 1981) ..................... 41,42,43

Brody v. Village of Port Chester, 345 F.3d 103 (2d Cir. 2003) .............................. 44

Catawba Indian Tribe v. South Carolina, 865 F.2d 1444 (4th Cir. 1989) ............... 30

Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266 (2d Cir. 2005) ........... passim

City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008) ................. 16

City of Sherrill v. Oneida Indian Nation of N.Y.,

544 U.S. 197 (2005)................................................................... 10,31,38,39,40

County of Oneida v Oneida Indian Nation,

470 U.S. 226 (1985)..............................................................27,36,37,38,39,40

Delta Sav. & Loan Ass'n v. IRS, 847 F.2d 248 (5th Cir. 1988) ............................... 42

Ewert v. Bluejacket, 259 U.S. 129 (1922) ............................................................... 32

Ex parte Young, 209 U.S. 123 (1908) ............................................................ 44,46,47

F. Alderete General Contractors, Inc. v. United States,

715 F.2d 1476 (Fed. Cir. 1983) ..................................................................... 42

Ford v. Reynolds, 316 F.3d 351 (2003) .................................................................... 44

Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.,

527 U.S. 308, (1999)...................................................................................... 40

Hecht Co. v. Bowles, 321 U.S. 321(1944) ............................................................... 40


iv

Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261 (1997)................................................................... 44,47,48,49,52

In re Deposit Insurance Agency, 482 F.3d 612 (2d Cir. 2007) .......................... 51,52

Interworks Sys. v. Merch. Fin. Corp., 604 F.3d 692 (2d Cir. N.Y. 2010) ............... 16

James v. Watt, 716 F.2d 71 (1st Cir. 1983) .............................................................. 30

Jicarilla Apache Tribe v. Hodel, 821 F.2d 537 (10th Cir. 1987) ............................. 18

Kabakjian v. United States, 267 F.3d 208 (3d Cir. 2001) .................................. 42,43

Kulawy v. United States, 917 F.2d 729 (2d Cir. 1990) ....................................... 41,44

Lac Du Flambeau Band v. Norton, 327 F.Supp.2d 995 (W.D. Wis. 2004) ............ 21

LeBeau v. United States, 115 F.Supp.2d 1172 (S.D.S.D. 2000) ............................. 21

MasterCard Intern. Inc. v. Visa Intern. Services Ass’n, Inc.,

471 F.3d 377 (2d Cir. 2006) .......................................................................... 22

Miami Tribe of Oklahoma v. Walden, 206 F.R.D. 238 (S.D. Ill. 2001) .................. 21

National City Bank of N.Y. v. Republic of China, 348 U.S. 356 (1955) .................. 24

New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc.,

101 F.3d 1492 (3d Cir. 1996) ........................................................................ 43

New York v. White, 528 F.2d 336 (2d Cir. 1975) ..................................................... 50

Oneida Indian Nation v. County of Oneida, 464 F.2d 916 (2d Cir. 1972) .............. 50

Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) .......................... 40

Oneida Indian Nation v. County of Oneida, 719 F.2d 525 (2d Cir. 1983) .............. 50

Oneida Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114

(2d Cir. 2010) ..........................................................................................passim


v

Oneida Indian Nation v. County of Oneida, 199 F.R.D. 61

(N.D.N.Y. 2000) ............................................................................................ 39

Oneida Indian Nation of New York v. State of New York, 860 F.2d 1145

(2d Cir. 1988). .................................................................................................. 5

Oneida Indian Tribe of Indians of Wisconsin v. AGB Properties,

2002 WL 31005165 (N.D.N.Y. 2002) ........................................................... 23

Onondaga Nation v. New York, 500 F. Appx. 87 (2d Cir. 2012) ......................... 2,25

Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9th

Cir.1994) ................................ 23

Republic of the Philippines v. Pimental, 553 U.S. 851, 867 (2008) ........................ 23

Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U.S. 477 (1989)....................................................................................... 39

Schneider v. Dumbarton Developers, Inc.,

767 F.2d 1007 (D.C.Cir.1985) ................................................................. 20,24

S.E.C. v. Credit Bancorp, Ltd., 297 F.3d 127 (2d Cir. 2002) .................................. 18

Seneca Nation of Indians v. New York, 206 F.Supp.2d 448 (W.D.N.Y. 2002) ....... 26

Six Nations, et al. v. United States, 32 Ind. Cl. Comm. 440 (1973) .......................... 7

Smith v. Reagan, 841 F.2d 28 (2d Cir. 1988) .......................................................... 45

State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada,

374 F.3d 158 (2d Cir. 2004) ..................................................................................... 45

Stockbridge-Munsee Cmty. v. State, 2013 U.S. Dist. LEXIS 102569;

2013 WL 3822093 (N.D.N.Y July 23, 2013) .................................................. 3

The Stockbridge Munsee Community v. United States, 25 Ind. Cl. Comm.

281 (1971) ..................................................................................................... 7,8

Tindal v. Wesley, 167 U.S. 204 (1897) ..................................................... 44,45,49,50


vi

United States v. Brennan, 650 F.3d 65 (2d Cir. 2011) ............................................ 39

United States v. Gomez, 580 F.3d 94 (2d Cir. 2009) ............................................... 39

United States v. Lee, 106 U.S. 196 (1882) ..................................................... 44,49,50

United States v. Mack, 295 U.S. 480 (1935) ............................................................ 37

United States v. Martinez, 413 F.3d 239(2d Cir. 2005) ........................................... 39

United States v. Oakland Cannabis Buyers’ Co-op.,

532 U.S. 483 (2001).................................................................................. 37,40

U.S. v. State of Oregon, 657 F.2d 1009 (9th

Cir. 1981) ...................................... 20,24

Verizon Maryland, Inc. V. Public Serv. Com’n of Maryland,

535 U.S. 635 (2002)....................................................................................... 48

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1988) ............................................ 40

Western Mohegan Tribe and Nation v. Orange County,

395 F.3d 18 (2d Cir. 2004) .................................................................. 47,48,52

Wichita and Affiliated Tribes of Oklahoma v. Hodel,

788 F.2d 765 (DC Cir. 1986) .......................................................... 19,20,23,24

Yankton Sioux Tribe v. U.S., 272 U.S. 351 (1926) .................................................. 32

TREATIES

1788 Treaty of Fort Schuyler .............................................................................. 1,2,5

AGREEMENT WITH THE FIVE NATIONS OF INDIANS,

Article of April 23, 1792 ................................................................................. 6

1794 Treaty of Canandaigua, 7 Stat. 44 ............................................................ 1,2,6,7


vii

STATUTES and REGULATIONS

Trade and Intercourse Act

25 U.S.C. § 177 .......................................................................................... 1,36

Indian Reorganization Act

25 U.S.C. §465 ............................................................................................... 33

Quiet Title Act,

28 U.S.C. § 2409a ..................................................................................... 41,42

Indian Claims Limitation Act of 1982,

Pub. L. No. 97-394, 96 Stat. 1976 ................................................................. 36

28 U.S.C. § 1331 ........................................................................................................ 1

28 U.S.C. § 1337 ........................................................................................................ 1

28 U.S.C. § 1362 ........................................................................................................ 1

28 U.S.C. § 1492 ...................................................................................................... 33

28 U.S.C. § 2415 ...................................................................................................... 37

28 U.S.C. § 2505 ...................................................................................................... 33

25 C.F.R. Part 151.10 ............................................................................................... 33

25 C.F.R. Part 151.11 ............................................................................................... 33

AN ACT for the sale and disposition of lands, belonging to the

people of this State, Laws of the State of New York,

Vol. III, Chap. 32 (Albany, 1877) ........................................................................... 2,5

LEGISLATIVE MATERIALS

H.R. Doc. No. 477, 29th

Cong., 1st Sess. 29 (1846) ................................................... 7

S. Rep. No. 1253, 92d Cong., 2d Sess. (1972) ........................................................ 37


viii

H. R. Rep. No. 375, 95th

Cong., 1st Sess. (1977) ..................................................... 37

H. R. Rep. No. 807, 96th

Cong., 2d Sess. (1980) .................................................... 37

S. Rep. No. 569, 96th

Cong., 2d Sess. (1980) .......................................................... 37

123 Cong. Rec. 22 (1977) ........................................................................................ 37

MISCELLANEOUS

Ashutosh Bhagwat, Separate But Equal?: The Supreme Court,

The Lower Federal Courts, and the Nature of the “Judicial Power”,

80 B.U. L. Rev. 967 (Oct. 2000) .............................................................................. 35

D. Dobbs, 1 LAW OF REMEDIES 91 (2d. ed. 1993) .................................................. 40

Dobbs, LAW OF REMEDIES § 1.2 (1973) .................................................................. 39

Matthew L. M. Fletcher, The Comparative Rights of Indispensable

Sovereigns, 40 Gonz. L. Rev. 1 (2004-2005) .......................................................... 23

Kathryn Fort, Disruption and Impossibility: the New Laches and

the Unfortunate Resolution of the Modern Iroquois Land Claims,

11 Wyo. L. Rev. 375 (2011) .................................................................................... 40

Hough, Proceedings of the Commissioners of Indian Affairs

Appointed by Law for the Extinguishment of Indian Title

in the State of New York, Albany (1861)

Indian Claims Commission Dkts. 300-A & 301 ..................................................... 4,5

The Supreme Court, 1996 Term–Leading Cases, Ex parte Young

Doctrine, 111 Harv. L. Rev. 269 (1997) .................................................................. 47

Wm. A. Starna, From Homeland to New Land: A History of the

Mahican Indians, 1600–1830, University of Nebraska Press (2013) ........................ 4


JURISDICTIONAL STATEMENT

In the District Court, Plaintiff-Appellant Stockbridge-Munsee Community

(Stockbridge) alleged jurisdiction under 28 U.S.C. §§ 1331, 1337 and 1362 over

claims arising under federal common law, the 1794 Treaty of Canandaigua, 7 Stat.

44, the 1788 Treaty of Fort Schuyler and 25 U.S.C. § 177. Amended Complaint

(“AC”) ¶3, A106. On July 23, 2013, the District Court dismissed this action for

lack of jurisdiction based on the bars imposed by immunity from suit under the

Eleventh Amendment, tribal sovereign immunity and the laches-like defense

developed and applied in Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266 (2d

Cir. 2005) and its progeny.

The Order and Judgment of dismissal was entered on July 23, 2013, SPA1,

SPA10, and Stockbridge filed its Notice of Appeal on August 13, 2013. A437.

The Court of Appeals has jurisdiction over this Appeal under 28 U.S.C. § 1291

because the Judgment below is final as against Stockbridge.

STATEMENT OF THE ISSUES

1. Whether the District Court erred in dismissing Stockbridge’s claims against

Defendant-Intervenor Oneida Indian Nation of New York (OIN) based on the bar

imposed by the doctrine of tribal sovereign immunity.

2. Whether the District Court erred in dismissing Stockbridge’s claims against

the County and Municipal defendants based on the bar imposed by this Court’s


2

erroneous ancestral-land-claim version of laches (“the Sherrill defense”)

announced and applied in Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266

(2d Cir. 2005) (Cayuga); Oneida Indian of N.Y. v. County of Oneida, 617 F.3d 114,

127-28 (2d Cir. 2010) (Oneida) and Onondaga Nation v. New York, 500 F. Appx

87, 89 (2d Cir. 2012).

3. Whether the District Court’s Order dismissing Stockbridge’s claims against

the Governor of New York and the New York State Commissioner of

Transportation as barred by the Eleventh Amendment should be reversed.

STATEMENT OF THE CASE

Stockbridge is a federally recognized Indian tribe residing on a federal

Indian reservation in Wisconsin. Originally from the Hudson and Housatonic

River Valleys in New York and western Massachusetts, it relocated to a six-mile

square tract granted to it by the Oneida Nation in 1785 which was later established

as a permanent Stockbridge reservation in the 1788 Treaty of Fort Schuyler and its

1789 implementing act and acknowledged by the United States in the 1794 Treaty

of Canandaigua. In 15 transactions during the period from 1818 to 1842, the State

of New York purchased this land for unconscionably low prices without

congressional approval in violation of federal law.

Stockbridge filed this action in 1986 against the State of New York and its

Department of Transportation, its Governor and Commissioner of Transportation,


3

Madison and Oneida Counties and several municipalities asserting that the 15

transactions were void and that Stockbridge retained recognized Indian title to the

six-mile-square tract. In 1987, OIN intervened as a defendant for all purposes to

establish that it, rather than Stockbridge, retained ownership and possessory rights

in the 1788 Stockbridge Reservation. Thereafter, OIN purchased over 3,700 acres

within the 1788 Stockbridge Reservation. In 2004, Stockbridge amended its

complaint to: a) invoke the Ex Parte Young doctrine and assert claims for

prospective relief against state officials; and b) assert, as to OIN’s post-

intervention claim-area lands, the same claims asserted against the other named

defendants.

On July 23, 2013, U.S. District Judge Lawrence E. Kahn granted the State’s

motion to dismiss on Eleventh Amendment grounds, the County and Municipal

defendants’ motion to dismiss based on the Sherrill defense, and OIN’s motion to

dismiss based on tribal sovereign immunity. Stockbridge-Munsee Cmty. v. State,

2013 U.S. Dist. LEXIS 102569; 2013 WL 3822093 (N.D.N.Y July 23, 2013).

STATEMENT OF FACTS

1. Historical Background

The Mahican Indians, whose aboriginal territory was the mid-to-upper

Hudson River and Housatonic River Valleys, first contacted Europeans when they

greeted the Dutch explorer Henry Hudson near present-day Albany in 1609.


4

Pressure from encroaching non-Indian settlement forced relocations in 1736 to a

six-mile-square reservation at Stockbridge in western Massachusetts and, in 1785,

to another six-mile-square tract in Oneida aboriginal territory in central New

York.1

This tract, which is the subject of this action, was surveyed and granted by

the Oneidas to Stockbridge in 1785. It was known as New Stockbridge and was

later established as a permanent Stockbridge reservation by the same state and

federal treaties that established the adjacent but separate Oneida reservation.2 In

1785, Oneida and Stockbridge leaders attempted to secure the enactment of state

legislation “for confirming a grant from the Oneida to the Stockbridge Indians,

under proper restrictions.” In that same year, a bill to confirm the grant passed the

New York State Senate but died in the Assembly. Starna 3 and 6-8, A278 and

A281-83, quoting Journal of the Senate, 10-11.

In 1788, at the proceedings culminating in the Treaty of Fort Schuyler

between the State and the Oneida Nation, the Oneida Nation ceded almost all its

aboriginal territory—roughly six-million acres—to the State of New York,

1 Affidavit of William A. Starna at 1, Exhibit A to the Declaration of Don B.

Miller. A276 (hereinafter “Starna”); AC ¶¶14 and 16, A111. 2 AC¶¶ 17, 21-22, A111, A113; Hough, Proceedings of the Commissioners of

Indian Affairs Appointed by Law for the Extinguishment of Indian Title in the

State of New York, Albany (1861) at 230. A157; Starna 3-6, A278-81. See Wm.

A. Starna, From Homeland to New Land: A History of the Mahican Indians, 1600–

1830, 201-207, University of Nebraska Press (2013).


5

reserving approximately 250,000 acres as a permanent homeland for itself. At that

treaty, Oneida leaders again sought to have the state confirm the 1785 grant to

Stockbridge. Oneida leaders insisted to Governor Clinton that Stockbridge “must

be established in their Settlements by you.” Starna 9, A284, quoting Hough,

Proceedings of the Commissioners, 1:230 (A157). This time they were successful.

The 1788 Treaty established an initial reservation for the Oneidas and a separate,

smaller reservation of six-miles square for the Stockbridge:

and further notwithstanding any reservations of lands to the Oneidas for

their own use, the New England Indians ... and their posterity forever, and

the Stockbridge indians [sic] and their posterity forever are to enjoy their

settlements on the lands heretofore given to them by the Oneidas for that

purpose, that is to say, a tract of two miles in breadth and three miles in

length for the New England Indians, and a tract of six miles square for the

Stockbridge Indians.

A151 (emphasis added); Starna 9, A284. This Court has expressly held that the

1788 Treaty of Fort Schuyler was a valid exercise of the sovereign power to

extinguish Oneida Indian title. Oneida Indian Nation of New York v. State of New

York, 860 F.2d 1145 (2d Cir. 1988).

In 1789, the New York Legislature implemented the 1788 Treaty by statute

and permanently established the New Stockbridge Reservation, decreeing: “that

the tract of land, confirmed by the Oneida Indians to the Stockbridge Indians at the

said treaty, shall be and remain to the said Stockbridge Indians and their posterity.”

AC¶18, A112; Laws of the State of New York, 70 [AN ACT for the sale and


6

disposition of lands, belonging to the people of this State], Laws of the State of

New York, Vol. III, Chap. 32, 69-72 (Albany, 1877), A341; Starna 3 and 8-10,

A278, 283-85.

During the Revolutionary War, the Stockbridge Indians were allied with the

United States and suffered heavy casualties. Shortly after the War, the United

States entered into several treaties with the Stockbridge.

In the Article of April 23, 1792, a Senate-ratified agreement between the

United States and the “Five Nations of Indians, so called, being the Senecas,

Oneidas, and the Stockbridge Indians,” the United States agreed to expend $1500

annually to purchase “clothing, domestic animals, and implements of husbandry,

and for encouraging useful artificers to reside in their villages.” AGREEMENT WITH

THE FIVE NATIONS OF INDIANS, April 23, 1792, American State Papers, Indian

Affairs, Vol. 1, p. 232; Kappler’s Indian Affairs, Laws and Treaties, Vol. II, 1027

(Gov’t Printing Office 1904), available at

http://digital.library.okstate.edu/kappler/Vol2/treaties/fiv1027.htm.

In the 1794 Treaty of Canandaigua, 7 Stat. 44, the United States renewed

and expanded its obligations to Stockbridge undertaken in 1792. In Article VI of

the 1794 Treaty, the United States promised to add $3000 to the $1500 annual

expenditure promised under the 1792 Article:

making in the whole, four thousand five hundred dollars; which shall be

expended yearly forever … for [the] benefit … of the Six Nations, and their


7

Indian friends aforesaid.

A161. As a signatory to the 1794 Treaty, Stockbridge, like other signatory tribes,

received annuities under the Treaty from the United States.3

In article II of the same 1794 Treaty, the United States acknowledged the

signatory tribes’ confederal-period reservations and promised never to disturb any

of them in the “free use and enjoyment” of their lands. AC¶21, A113. In 1971, the

Indian Claims Commission found that “Stockbridge had a compensable property

interest in New Stockbridge,” that article II of the 1794 Treaty “related to the lands

of the Stockbridges” and that “[a]rticle II pledged the United States never to

disturb them in their free use and enjoyment of New Stockbridge.” The

Stockbridge Munsee Community v. United States, 25 Ind. Cl. Comm. 281, 291-92

(1971), A389-90. See Starna 5-6 and 10-12, A280-81 and A285-87. Dr. Starna

concluded that “[by] its terms, the 1794 Treaty acknowledged as Oneida

reservation only those lands that were reserved to the Oneida in the 1788 Treaty,

and the New Stockbridge reservation had been expressly excluded from the Oneida

reservation by that Treaty.” A280.

3 See Six Nations, et al. v. United States, 32 Ind. Cl. Comm. 440 (1973) which dealt

with claims arising under “an Article dated April 23, 1792" and the “Treaty of

November 11, 1794.” Stockbridge shared in the final award based on the United

States’ failure to pay the annuities due the tribes under the two instruments. H.R.

Doc. No. 477, 29th Cong., 1

st Sess. 29 (1846) describes the annuities paid by the

United States to Stockbridge as a signatory to the 1794 Treaty of Canandaigua.


8

Subsequently, in 15 transactions executed without federal participation or

approval between 1818 and 1842, the State of New York acquired possession of

New Stockbridge. AC ¶¶25-40, A114-18; 25 Ind. Cl. Comm. at 282-283, A380-

81. Beginning in about 1820, Stockbridge began its relocation to present-day

Wisconsin, eventually settling on a two-township reservation northwest of Green

Bay. In 1937, it organized under the Indian Reorganization Act as the

“Stockbridge-Munsee Community.” A220.

2. The Proceedings Below

In 1986, Stockbridge filed this action asserting that the State transactions

were void and that Stockbridge retained recognized Indian title to the six-mile-

square tract. Stockbridge sought ejectment, damages and declaratory relief against

all named defendants (all governmental entities possessing land within the 1788

New Stockbridge reservation). Complaint, A34.

In 1987, OIN moved to intervene as of right and be “treated as a party

defendant for all purposes,” OIN (proposed) Order, A67, to establish that it, rather

than Stockbridge, retained “ownership and the right to possession” to the subject

lands. Mem. Support of Intervention at 2, A51. In the alternative, OIN moved for

permissive intervention, asserting that “[t]he Nation’s defense and plaintiff’s

claims have a question of law in common, specifically who is entitled to ownership

of the subject lands.” Motion, A48-49. The County and Municipal defendants


9

opposed and argued that if OIN’s motion were to be granted, it should be aligned

as a plaintiff. Mem. in Opp., Dkt.No.20. But OIN opposed alignment as a

plaintiff, replying that it “is making no claim, and is seeking no damages or other

relief from the defendants, in this action. OIN simply seeks the dismissal of the

plaintiffs’ claims on the ground that the land claimed by plaintiffs belongs to OIN.

Thus, OIN’s interests are aligned with those of the defendants....” Reply to

Oppositions to the Oneida’s Motion to Intervene at 6 (emphasis added). A71.

The order granting OIN’s intervention motion under Rule 24(a)(2) stated, as

requested by OIN, that “[t]he Nation shall be treated as a party defendant for all

purposes.” Order (9-25-87), A74.

Following discovery and the filing of cross-motions for summary judgment

by the tribal parties, in 1991 New York sought dismissal on Eleventh Amendment

grounds and the County and Municipal defendants sought dismissal pursuant to

Rule 19 for failure to join the State as an indispensable party in the event the

State’s motion were granted. Dkt.Nos.123-126. OIN opposed this motion to

dismiss. Mem. in Opp., A76. Thereafter, for much of the period between the mid-

1990s and 2003, the case was stayed to permit the Supreme Court to complete its

review of its Eleventh Amendment jurisprudence and to permit the Departments of

the Interior and Justice to evaluate Stockbridge’s request that the United States

intervene in this action on Stockbridge’s behalf. See, e.g., Affidavit, Dkt.No.198.


10

In 2004, Stockbridge amended its complaint to accommodate post-1986

changes in Eleventh Amendment jurisprudence and to assert the same claims

against OIN that it asserted against the other named defendants. A106. After OIN

moved to dismiss, the case was again stayed, this time to facilitate settlement

negotiations which culminated in Stockbridge and Governor Pataki executing a

settlement agreement in December 2004. See Dkt.Nos.237 & 241. The required

state and federal implementing legislation could not be achieved and the settlement

failed in 2005. Thereafter, the case was further stayed to permit the Cayuga and

Oneida land-claim litigations to be completed in the wake of City of Sherrill v.

Oneida Indian Nation of N.Y., 544 U.S. 197 (2005). Orders, Dkt.Nos.261, 263.

Following completion of the Oneida land-claim litigation in 2011, the stay was

lifted and supplemental motions to dismiss the Amended Complaint were filed.

On July 23, 2013, the District Court granted the State’s motion to dismiss on

Eleventh Amendment grounds, the County and Municipal defendants’ motion to

dismiss based on the Sherrill defense, and OIN’s motion to dismiss based on tribal

sovereign immunity. SPA8-9.

SUMMARY OF THE ARGUMENT

1. The District Court erroneously ruled that, notwithstanding OIN’s

unlimited, all-purpose intervention as a defendant to assert its own claim of

ownership and possession to the Stockbridge treaty lands, OIN did not waive its


11

immunity to Stockbridge’s claims to ownership and possession of lands purchased

by OIN within the Stockbridge claim area after it intervened.

The District Court misconstrued the terms of OIN’s intervention, which

defined the scope of the court’s jurisdiction. OIN intervened “to be treated as a

party defendant for all purposes” expressly to litigate the merits of its own claim of

a superior right to possession and ownership and obtain dismissal of this action on

that basis alone. From its inception, this action sought ejectment and damages

against all named defendants. After voluntarily intervening to obtain an

adjudication of its ownership and possessory rights, OIN purchased over 3,700

acres that were the subject of this action. By intervening to defend on the strength

of its own claim of possessory Indian title rather than its status as an indispensable

party that could not be joined because it was immune from unconsented suit, OIN

waived its immunity and rendered itself vulnerable to a complete adjudication of

the issues it intervened to litigate. This included the issue of which tribe retains

Indian title to the claim-area lands that OIN purchased after intervening.

2. Neither should Stockbridge’s claims against OIN be dismissed on the

basis of the Sherrill defense should it be determined that jurisdiction lies under an

OIN waiver of immunity. The Sherrill defense was crafted by this Court to protect

numerous landowners’ justifiable expectations that the peaceful possession

promised by a sovereign fee title originating in the State will not be disrupted by a


12

claim of surviving possessory Indian title stemming from the illegality of an

“ancient” transaction. But the defense does not properly apply where a defendant

intervenes for the purpose of litigating the merits of its Indian-title claim, the

validity of the “ancient” transaction is not challenged, the contestants are both

Indian tribes and the issue is which tribe’s Indian-title claim is superior.

If the Sherrill defense is applicable, its application does not result in

dismissal because none of its three elements, all of which must be satisfied for a

claim to be barred, are satisfied here. The first element, the length of time at issue

between an historical injustice and the present day, is not met because the

historical injustice is not at issue – Stockbridge has abandoned the Nonintercourse

Act claim against OIN and does not challenge the validity of the 19th

century

transactions by which New York originally acquired possession. Stockbridge and

OIN agree that Indian title to New Stockbridge was not extinguished by the 19th

century transactions and continues to reside in either Stockbridge or OIN.

The second Sherrill factor, the disruptive nature of claims long delayed,

likewise is not satisfied because the claim was not long delayed. There was no

dispute between the tribes before OIN intervened in 1987. Stockbridge’s claim

against OIN accrued in 1998 upon OIN’s initial purchase of New Stockbridge

lands and the amended complaint sought relief within six years of OIN’s initial

purchase.


13

The third Sherrill factor – the degree to which these claims upset the

justifiable expectations of individuals and entities far removed from the events

giving rise to the plaintiffs' injury – plainly is not satisfied. OIN voluntarily

intervened as a defendant for all purposes in an action seeking possessory relief

against all named defendants – and it did so expressly to litigate the merits of its

Indian-title-based claim to superior ownership and possessory rights under the

1788 and 1794 treaties. Thereafter, it purchased over 3,700 acres within the New

Stockbridge reservation. OIN thus has no justifiable expectations arising out of

being far removed from the events giving rise to Stockbridge’s injury.

Nor would Stockbridge’s claims against OIN upset justifiable expectations

that rely on the predictability of the settled scheme of land ownership to protect

sovereign fee titles. Indian title and sovereign fee title may exist in the same land

at the same time, and these claims do not implicate the fee title estates protected by

the settled scheme of land ownership. Rather, they seek relief based on the

surviving Indian title estate without challenging the validity of the 19th

century

transactions. As such, they are unique and their resolution by a federal court poses

no threat of disruption to the settled expectations of society at large.

3. The District Court erred in dismissing Stockbridge’s claims against the

Counties and Municipal defendants based on the bar of the laches-like defense

developed in Cayuga and applied in Oneida and Onondaga. The District Court


14

was bound to follow Cayuga and its progeny, as is this panel, Oneida, 617 F.3d at

122, but those cases were wrongly decided. This Court’s rule closing the federal

courts to all tribal claims seeking redress for the illegal dispossession of treaty-

guaranteed ancestral lands protected by federal statute and common law is wrong

because it substitutes the Court of Appeals’ judgment for Congress’ express

judgment that an action to vindicate possessory rights should not be barred by any

time-based defense. Moreover, this unnecessarily harsh rule stands in

irreconcilable conflict with both the plain language of the Nonintercourse Act and

the Supreme Court decisions in Oneida II and Sherrill, improperly extending

Sherrill to bar a claim and all remedies, where Sherrill had expressly left Oneida II

– which endorsed a monetary remedy for possessory land claims – undisturbed and

confined its holding to employing the laches-like defense to bar a particular

equitable remedy.

4. The District Court erred in holding that, as a result of New York divesting

itself of the .91-acre parcel at some point after the Amended Complaint was filed,

the Eleventh Amendment barred Stockbridge’s claims because Ex Parte Young

could not support its claim where the alleged violation of federal law by state

officials had ceased and there was longer any basis for a prospective ejectment

action against the state officials. The rule applicable in this Circuit, however, is

that jurisdiction is determined at the time suit is filed and there is no principled


15

basis upon which to distinguish the rule’s applicability in the statutory-waiver

context from its applicability in the context of an Ex Parte Young action – the

interest in preventing the risk of manipulation of jurisdiction is the same in both

contexts. Rather than dismiss, the District Court should have joined the current

possessor of the parcel.

The Ex Parte Young doctrine therefore applies to avoid the Eleventh

Amendment bar because the only sovereign interest in possessing the .91-acre tract

of abandoned farm land belongs to Stockbridge. Stockbridge alleges an ongoing

violation of federal law and seeks only prospective relief. It asserts only an

ejectment claim for future possession against State officers and does not challenge

the State’s title or assert claims against the State itself. Nor does Stockbridge

assert regulatory jurisdiction over this land. Therefore, no unique state sovereign

interest is implicated. Where no special state sovereignty interests are involved,

the Eleventh Amendment does not prevent a federal court from providing relief

from governmental officials taking illegal possession of property in violation of

federal law.

ARGUMENT

Standard of Review

This Circuit “review[s] a District Court's decision to grant a motion to

dismiss for failure to state a claim upon which relief can be granted de novo, taking


16

the factual allegations in the complaint to be true and drawing all reasonable

inferences in the non-movant's favor.” Interworks Sys. v. Merch. Fin. Corp., 604

F.3d 692, 699 (2d Cir. N.Y. 2010), citing City of New York v. Beretta U.S.A. Corp.,

524 F.3d 384, 392 (2d Cir. 2008).

I. The District Court Erred in Dismissing Stockbridge’s Claims Against

Intervenor-Defendant Oneida Indian Nation on the Ground of Tribal

Sovereign Immunity.

The 1986 complaint in this action named as defendants all units of

government that possessed land within the claim area, sought declaratory,

ejectment and damages relief with respect to “all of the subject lands claimed by

any defendant herein” and stated that Stockbridge, by excluding lands claimed by

others, did not waive any rights it may have against such lands or claimants.4

In 1987, OIN moved under Fed.R.Civ.P. 24(a)(2) to intervene and be treated

as a defendant “for all purposes” based on its competing claim of ownership and

right to possession of the New Stockbridge reservation.5 Its Answer in

4 Complaint, A34.

5 Although OIN’s Motion to Intervene had asserted that its interest is adverse to

that of all existing parties, A48, it argued the opposite in its reply to defendants’

opposition. Defendants’ opposition had argued that intervention should not be

permitted, but if it were to be allowed, OIN should be aligned as a plaintiff rather

than a defendant because it asserted title in itself. See Dkt.No.20. But OIN

opposed alignment as a plaintiff, replying that it “is making no claim, and is

seeking no damages or other relief from the defendants, in this action. OIN simply

seeks the dismissal of the plaintiffs’ claims on the ground that the land claimed by


17

Intervention asserted the affirmative defense that “the Oneidas never ceded to the

Stockbridge any property interest in, or rights to, this land [and] [o]wnership and

the right to possession of this land remains in the [OIN].” A65. In the

alternative, it moved to intervene under Rule 24(b)(2), asserting that “[t]he

Nation’s defense and plaintiff’s claims have a question of law in common,

specifically who is entitled to ownership of the subject lands.”6 The accompanying

proposed Order provided that “[t]he Nation shall be treated as a party defendant for

all purposes.”7

Judge McAvoy granted OIN’s intervention motion under Rule 24(a)(2) and

plaintiffs belongs to OIN. Thus, OIN’s interests are aligned with those of the

defendants....” Reply to Oppositions to the Oneida’s Motion to Intervene at 6

(emphasis added). A71. OIN misleadingly explained that the reason it seeks no

affirmative relief in this suit is “because such claims are already pending in two

other suits in which OIN is involved. Some of the lands at issue in this case are

included in ... Civil Action No. 70-CV-35 ... [and] [s]ome ... are also included [in]

... No. 74-CV-187.” Id. at 6-7. But that was inaccurate, as none of the lands

claimed in this action were ever the subject of either the Oneidas’ test case against

the Counties (No. 70-CV-35) or the Oneidas’ possessory claims asserted in No. 74-

CV-187. See Map of State Transactions, Bureau of Land Management (9-1-03),

A391; Amended Complaint in No. 74-CV-187 at 4, n. 1, A395 (“New Stockbridge

Tract ... the subject of ... No. 86-CV-1140 ... is not included in the present

Amended Complaint or otherwise currently included in the present case.”).

Four years later, OIN decided that its interests were no longer aligned with

defendants’ interests and, despite its assertion that it had intervened only to seek

dismissal of this action, opposed the County and municipal defendants’ motion to

dismiss for failure to join an indispensable party. Mem. in Opp. (12-3-91), A76. 6 Motion to Intervene at 1-2, A48-9.

7 (Proposed) Order at 1, A67.


18

ordered, as requested by OIN, that “[t]he Nation shall be treated as a party

defendant for all purposes.”8 After voluntarily intervening as a defendant, OIN,

beginning in the 1990s and continuing into the early 2000s, purchased

approximately 3,760 acres within the New Stockbridge Reservation, the area

subject to the claims asserted in this action.9 In 2004, Stockbridge amended its

complaint to, among other things, conform the pleadings to the state of the case

and assert the same claims for relief against OIN it had asserted against the other

governmental defendants in the original complaint.10

In dismissing this action because OIN had not waived its immunity, the

District Court improperly ignored the express terms upon which OIN voluntarily

intervened in this action. The scope of a tribe’s waiver is defined by the “terms”

by which it “consents to be sued,”11

and they define the scope of the Court’s

jurisdiction.12

In this case, those terms are explicitly set forth in OIN’s Answer in

Intervention. After denying Stockbridge’s allegations of ownership and possessory

8 Order (9-25-87), A74.

9 Affidavit of Paul Miller, 11-9-05, A422; table, “OIN Purchases within

Stockbridge Treaty Area,” A332-34.

10

AC, A106.

11

Jicarilla Apache Tribe v. Hodel, 821 F.2d 537, 539 (10th

Cir. 1987).

12

S.E.C. v. Credit Bancorp, Ltd., 297 F.3d 127, 136 (2d Cir. 2002).


19

rights, OIN asserted its own ownership and possessory rights:

In the late 18th

century, the Oneidas … permitted the Stockbridge … to live

on a portion of their lands. However, the Oneidas never ceded to the

Stockbridge any property interest in, or rights to, that land. Ownership and

the right to possession of this land remains in [OIN].

Affirmative Defense ¶ 3, Answer in Intervention at 8, A65. (Emphasis added).

Ownership and possessory rights to the 1788 New Stockbridge treaty reservation

are the issues that OIN sought to litigate on their merits and for which it sought to

“be treated as a party defendant for all purposes.” By so defining the terms of its

participation in this action, OIN has expressly waived its immunity and rendered

itself vulnerable to complete adjudication of the claims raised in the amended

complaint. As OIN admitted, a tribe that intervenes in an action “consent[s] to the

court’s adjudication of the merits of that particular controversy.”13

The rule applicable here was set forth in Wichita and Affiliated Tribes of

Oklahoma v. Hodel, 788 F.2d 765, 773 (DC Cir. 1986), where the Court of

Appeals ruled that two tribes’ voluntary, unlimited intervention as party defendants

“was an express waiver of their right not to be joined in the Wichitas’ suit.” The

Wichita Tribe had filed suit against the Secretary of the Interior challenging a

scheme for distributing income among the three successors to a tribe that no longer

existed in its original form. The second and third tribes intervened as defendants

13

2004 Mem. at 11, A137 (quoting McClendon v. United States, 885 F.2d 627,

630 (9th

Cir. 1989)).


20

without limiting the purposes for which they sought to participate, with the second

tribe filing a cross claim against the Department. The Court of Appeals ruled that

the second and third tribes’ voluntary intervention as defendants was an express

waiver of their sovereign immunity, but that the plaintiff tribe had not waived its

immunity to the second tribe’s cross claim. Because the Wichitas and the third

tribe were indispensable parties in whose absence the second tribe’s cross claim

could not proceed, the cross claim was dismissed. The Court explained the

distinction between voluntarily intervening as a defendant and initiating litigation

as a plaintiff:

Unlike a situation where a tribe enters a suit as a plaintiff, anticipating that it

can only improve or maintain its status quo, a tribe intervening as a

defendant fully realizes that it might lose that which it already has—

preserving its status quo is the whole point of the intervention. By so

intervening, a party “renders itself ‘vulnerable to complete adjudication by

the federal court of the issues in litigation between the intervenor and the

adverse party.’”14

Wichita’s distinction between the consequences of intervention as a plaintiff

and intervention as a defendant is important here and illustrates why, when

intervening as a defendant only for the purpose of seeking dismissal, sovereign

entities generally assert their immunity as a defense and seek dismissal for failure

to join a required party under Rule 19, expressly stating that they seek to

14

Id., 788 F.2d. at 773, (emphasis added) (quoting Schneider v. Dumbarton

Developers, Inc., 767 F.2d 1007, 1017 (D.C.Cir.1985) (quoting U.S. v. State of

Oregon, 657 F.2d 1009, 1014 (9th Cir. 1981))).


21

participate in the litigation for the limited purpose of seeking dismissal and that

they waive their immunity for that purpose only.15

But the record in this case demonstrates that OIN did not intervene solely to

obtain a dismissal. Rather, it intervened to obtain a ruling that the action must be

dismissed because OIN – not Stockbridge – is the holder of Indian title under the

1788 and 1794 treaties. Thus, OIN intervened as a defendant but did not limit its

waiver of sovereign immunity to seeking dismissal of Stockbridge’s claims. In

fact, its intervention papers contain no mention of sovereign immunity and its

Answer in Intervention admits jurisdiction and seeks to litigate “ownership and the

right to possession of [the land comprising the 1788 New Stockbridge

reservation].” 16

If the only thing OIN sought to gain from its participation in this

action was the dismissal of Stockbridge’s claims while preserving its immunity

from unconsented suit, it would have expressly stated that by intervening as a

defendant it was waiving its immunity only for the limited purpose of seeking

dismissal and not for any other purpose. It then would have sought dismissal under

Rule 19(b) as a party that was necessary—OIN had satisfied the standards for

necessary-party status by successfully intervening under Rule 24(a)(2), which

15

See, e.g., Lac Du Flambeau Band v. Norton, 327 F.Supp.2d 995, 1000 (W.D.

Wis. 2004); Miami Tribe of Oklahoma v. Walden, 206 F.R.D. 238, 239 (S.D. Ill.

2001); LeBeau v. United States, 115 F.Supp.2d 1172, 1181 (S.D.S.D. 2000).

16

Answer in Intervention at 1, ¶2, A58 and 8, ¶3, A65.


22

embodies the same standards as Rule 19(a)17

—but which could not be joined

because it was immune to suit absent its consent and the action therefore could not

properly proceed in its absence.

Instead, OIN sought and was granted “treat[ment] as a party defendant for

all purposes” to litigate ownership and possessory rights to the lands set aside by

the 1788 Treaty as a Stockbridge reservation. It chose to defend, not on the basis

of its sovereign immunity and indispensability, but on the merits of its own claim

of title.

Plainly OIN sought to achieve more from its intervention than simply

dismissal of Stockbridge’s claim. Its reply to the County and Municipal

defendants’ opposition to its intervention admitted that “OIN simply seeks the

dismissal of the plaintiffs’ claims on the ground that the land claimed by plaintiffs

belongs to OIN,” Ans. 6 (A71), and four years later it opposed the County and

municipal defendants’ motion to dismiss this action on other grounds.18

It would

appear, then, that OIN was attempting to position itself as the sole tribal claimant

to New Stockbridge in order to assert possessory and damages claims to the New

Stockbridge lands upon the dismissal of this action. But to so position itself, a

non-merits dismissal based on OIN’s indispensable-party status under Rule 19

17

See MasterCard Intern. Inc. v. Visa Intern. Services Ass’n, Inc., 471 F.3d 377,

389-90 (2d Cir. 2006).

18

See OIN’s Mem. in Opp. (12-03-91), A76.


23

would not be enough. Because a Rule 19 inquiry may not reach the merits,19

Stockbridge, in turn, would have been able to seek dismissal of OIN’s claim on the

same grounds.20

Thus, OIN needed to obtain a merits ruling that it, rather than

Stockbridge, was entitled to ownership of the subject lands—an objective that

could be accomplished only through fully participating (initially) as a defendant.

The ruling below erroneously gave no effect to the explicit terms by which

OIN consented to the jurisdiction of the federal courts. Where OIN has

affirmatively sought to litigate the merits of its Indian-title ownership and

possessory rights in an action seeking relief respecting all lands claimed by any

named defendant and has sought and received mandatory treatment as a defendant

for all purposes – without limitation or mention of tribal sovereign immunity – that

waiver necessarily encompasses the complete adjudication of the ownership and

possessory-rights issues. Wichita, 788 F.2d at 773. It is thus broad enough to

encompass subsequent claims involving precisely the same issues that OIN

19 Republic of the Philippines v. Pimental, 553 U.S. 851, 867 (2008).

20 See Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459 (9

th Cir.1994) (where

two tribes claim a non-frivolous interest in the same reservation, action by one

tribe cannot proceed in other tribe’s absence); Matthew L. M. Fletcher, The

Comparative Rights of Indispensable Sovereigns, 40 Gonz. L. Rev. 1, 17 (2004-

2005) (“one tribe cannot seek to litigate the respective rights of tribe under a treaty

without the presence of the absent treaty signatory tribes.”); Oneida Indian Tribe of

Indians of Wisconsin v. AGB Properties, 2002 U.S. Dist. LEXIS 16538, 2002 WL

31005165 at *14 (N.D.N.Y. 2002)(Dkt.No.288,Att.#5,Ex.CC).


24

expressly intervened to litigate and which were brought about by OIN’s own

actions, i.e., its post-intervention purchase of over 3,700 acres in the Stockbridge

claim area.

The District Court’s hyper-narrow parsing of the doctrine of tribal sovereign

immunity to permit federal jurisdiction only over “claims” that were at issue at the

time at the time of intervention rather than a complete adjudication of the issues

that were defined by OIN itself at the time of its intervention is in direct conflict

with Wichita, Schneider v. Dumbarton Developers, Inc, and U.S. v. Oregon, see

discussion supra at 19-21 and n.14. Moreover, in these particular circumstances,

the District Court erred in neglecting to heed Justice Frankfurter’s admonition that

“the doctrine [of sovereign immunity] is not absolute, and ... considerations of fair

play must be taken into account in its application.”21

OIN’s express and expansive

waiver should be applied and the judgment of the District Court reversed.

II. The Sherrill Equitable Defense Does Not Bar Stockbridge’s Claims

against the Nation.

The District Court likewise erred in finding that, even if it had jurisdiction

under a waiver of OIN’s sovereign immunity, the Sherrill equitable defense would

21

National City Bank of N.Y. v. Republic of China, 348 U.S. 356, 364 (1955).


25

compel dismissal of Stockbridge’s claims.22

Reasoning that “the dispute has

ancient roots and cannot send up new shoots through the salted earth of the Sherrill

defense whenever a future purchaser of land in the contested area happens to be the

Oneidas,” Slip Op. 8, n.6, SPA8, the District Court relied on Oneida’s broad

statement that “any claims premised on the assertion of a current, continuing right

to possession as a result of a flaw in the original termination of Indian title—are by

their nature disruptive.” Id. The Court below quoted Onondaga, 500 F.Appx. at 89

(quoting Oneida, 617 F.3d at 127), where this Court concisely set forth the three

elements of the Sherrill defense, all of which must be satisfied before an Indian

land claim action may be dismissed:

Three specific factors determine when ancestral land claims are foreclosed

on equitable grounds: (1) "the length of time at issue between an historical

injustice and the present day"; (2) "the disruptive nature of claims long

delayed"; and (3) "the degree to which these claims upset the justifiable

expectations of individuals and entities far removed from the events giving

rise to the plaintiffs' injury."

Slip Op.7, SPA7.

The District Court’s brief Sherrill-defense analysis is flawed, however, in

that it failed to consider a number of key distinguishing factors. This Court crafted

the Sherrill defense to protect numerous landowners’ justifiable expectation that

22

The District Court characterized the “Sherrill defense” as an application of

laches “peculiar” to ancestral land claims that does not require the elements of

traditional laches and is applicable to land claims at law even though laches is an

equitable defense. Slip Op.7, SPA7.


26

the peaceful possession promised by a fee-simple title originating in the State will

not be disrupted by a claim that unextinguished Indian title,23

stemming from the

illegality of an “ancient” transaction, trumps the fee-simple title’s guarantee of

quiet possession. But the defense cannot properly apply where, as here: a) the

defendant has intervened expressly to litigate the merits of its Indian-title claim; b)

the dispute as framed by the defendant does not pit Indian title against state-law-

based fee title, i.e., where the validity of the illegal “ancient” purchase and the

state-law-based fee-simple title are not challenged; c) the contestants are both

Indian tribes; and, d) the issue is which tribe’s Indian-title claim is superior.

Moreover, even if the defense does apply in these circumstances, none of the three

Sherrill factors are satisfied.

a. The first Sherrill factor, the length of time at issue between an

historical injustice and the present day, is not met because Stockbridge has

abandoned the Nonintercourse Act claim against OIN and does not challenge the

validity of the 19th

century transactions or the fee-titles acquired as a result of those

purchases. Stockbridge and OIN agree that Indian title to New Stockbridge was

23

Indian title, aboriginal or recognized, is the right of Indians to exclusively use

and occupy land. The underlying fee title to Indian land, also referred to as the

right of preemption or sovereign title, is held by the “discovering” European

sovereign or its successor who holds the exclusive right to acquire Indian land once

the Indian title is extinguished by the sovereign. See, e.g., Seneca Nation of

Indians v. New York, 206 F.Supp.2d 448, 504 (W.D.N.Y. 2002).


27

not extinguished by the 19th century transactions and continues to reside in either

Stockbridge or the Oneidas,24

and no court has held otherwise. Cf. County of

Oneida v Oneida Indian Nation, 470 U.S. 226 (1985)(Oneida II).25

OIN joined

this action for the express purpose of trying its Indian-title ownership and

possessory rights under the 1788 and 1794 treaties and, after purchasing the

Stockbridge reservation lands, expressly declined to defend on the strength of its

recently acquired fee title.

This is primarily a dispute about which tribe’s Indian title is superior, not

whether Stockbridge’s federal-law-based Indian title is superior to OIN’s state-

law-based fee title.26

Stockbridge’s abandonment of its Nonintercourse Act claim

against OIN conformed the tribal parties’ views regarding the parameters of this

24

This fact alone would suffice to distinguish a decision resolving this dispute

from those at which the Sherrill defense was directed – a tribal suit where the

defendants allege that Indian title has been extinguished.

25

Cayuga and its progeny assumed that the subject claims were “legally viable.”

See Oneida, 617 F.3d at 124. 26

See OIN’s 10-27-04 memorandum in support of motion to dismiss First

Amended Complaint at 9, A135, “[Stockbridge fails to state viable federal-

common-law claim because] [t]he Oneidas’ superior possessory right under the

1794 Treaty defeats SMC’s federal common law claim.” Stockbridge fails to state

federal-treaty claim because “federal Treaty of Canandaigua does not give the

Stockbridge any possessory right in land that is the ‘property’ and ‘reservation’ of

the Oneida.” (citation omitted).


28

tribe-versus-tribe dispute.27

In its 2004 papers seeking the Amended Complaint’s

dismissal, OIN made clear that it does not seek to litigate the superiority of its

recently acquired fee title, but rather seeks to establish its claim to a “superior

possessory right based on its federal law and treaty rights predating the illegal state

purchases.”28

The merits of this tribe-versus-tribe dispute are thus framed as

described in OIN’s 2004 Memorandum, i.e., the validity of the fee title is not

implicated, the “ancient” transaction’s validity is not challenged and liability

pursuant to the claims “alleged in the complaint depend[s] upon whether the 1788

state treaty gave the Stockbridge a federally-protected possessory right to land

superior to that of the Oneidas and, if so, whether it survived the 1794 federal

treaty ....” Id. at 4.

b. The second Sherrill factor, the disruptive nature of claims long

delayed, likewise is not satisfied because the claim was not long delayed. Before

1987, there was no dispute between Stockbridge and OIN. Stockbridge’s claim

against OIN accrued in 1998 upon OIN’s initial purchase of New Stockbridge

lands and Stockbridge amended its complaint to seek relief against OIN in 2004.29

27

See Stockbridge’s memorandum in opposition to OIN’s motion to dismiss

amended complaint at 2-3, A240-41.

28

OIN’s 10-27-04 memorandum at 5, A131.

29

OIN’s purchases within the claim area began on September 1, 1998 and ended on

December 15, 2003. Stockbridge amended its complaint to seek relief against OIN


29

Before OIN’s 1987 intervention, no Oneida tribe asserted an interest in New

Stockbridge and OIN, together with the other tribal plaintiffs in the Oneida land-

claim cases, acknowledged the validity Stockbridge’s title claim and supported

Stockbridge in its pursuit of its land-claim cases.30

c. The third Sherrill factor – the degree to which these claims upset the

justifiable expectations of individuals and entities far removed from the events

giving rise to the plaintiffs' injury – plainly is not satisfied. OIN voluntarily

intervened to be treated as a defendant for all purposes in an action seeking

possessory relief against all named defendants – and it did so expressly to litigate

on August 5, 2004, within six years of the initial purchase. See table, OIN

Purchases within Stockbridge Treaty Area. A332. 30

From 1950 to 1987, Stockbridge and OIN, jointly represented by the same

counsel, pursued separate land claims that acknowledged the validity of the other’s

claims in both the Indian Claims Commission (ICC) and federal District Court.

See gen’ly ICC Dkts. 300-A & 301. Available at

http://digital.library.okstate.edu/icc/. With the exception of this case, none of

OIN’s land-claim actions ever asserted a claim to Stockbridge lands. See

discussion supra at n.5 and Map, A391 and Am. Compl. in No. 74-CV-187 at 4,

n.1, A395. Indeed, in 1990, after OIN’s motion to consolidate this action with

three other Oneida land-claim actions was denied, Dkt.No.64, the other tribal

plaintiffs in the Oneida land-claim actions – the Oneida Tribe of Wisconsin and the

Oneida of the Thames Band – sought to participate in this action as amici in

support of Stockbridge’s claim of rights under the 1794 Treaty of Canandaigua.

The motion stated that “[p]roposed amici have continuously and still do support

the claim of plaintiff herein Stockbridge … to New Stockbridge, based on the

transfer of same from the Oneida Nation to plaintiff in 1788.” Motion for Leave to

Appear as Amici Curiae at 1, SPA12(no Dkt.No.). See 1991Order denying the

motion, Dkt.No.122, at 4, SPA20, for court’s explanation why motion does not

appear on District Court docket.


30

the merits of its Indian-title-based claim to superior ownership and possessory

rights under the 1788 and 1794 treaties. Thereafter, it purchased over 3,700 acres

within the New Stockbridge reservation. In these circumstances, OIN cannot be

said to possess justifiable expectations arising out of being far removed from the

events giving rise to Stockbridge’s injury.

Nor can it be said that Stockbridge’s claims against OIN might upset the

justifiable expectations of those individuals and entities that rely on the

predictability of the settled scheme of land ownership to protect their sovereign fee

titles. Indian title and sovereign fee title may exist in the same land at the same

time,31

and these claims do not threaten the non-tribal fee-title estates protected by

the settled scheme of land ownership. Rather, they seek relief based on the

unextinguished Indian-title estate without challenging the validity of the early 19th

century transactions. As such, they are unique and their resolution by a federal

court poses no threat of disruption to the settled expectations of society at large.32

31

See James v. Watt, 716 F.2d 71, 74 (1st Cir. 1983) (“two distinct levels of

ownership in Indian lands …. Indian title … coexisted with the fee title.”);

Catawba Indian Tribe v. South Carolina, 865 F.2d 1444, 1448-49 (4th Cir. 1989)

(although Indian title is not a recorded title, it is nonetheless legal title). 32

The question at this stage of the proceedings is whether the claims are so

disruptive as to deprive the federal courts of jurisdiction to entertain them. This

Court in Oneida stated “that the dispositive question in ascertaining the

applicability of Sherrill’s equitable defense is not whether a current possessory

right is asserted, but whether a plaintiff’s claim is inherently disruptive.” Oneida,


31

In Cayuga and Oneida, tribal plaintiffs claimed that their unextinguished

Indian title conferred a right of possession superior to that arising from the

(involuntary) defendants’ fee titles. Because “not only the Counties and the State

of New York, but also ... private landowners and a plethora of associated parties”

all had justifiable expectations, the “scheme of ‘settled land ownership’ ... would

be disrupted” by an award pursuant to the tribes’ possessory claims.33

This

dispute, in contrast, pits Stockbridge’s recognized-Indian-title claim against

volunteer defendant OIN’s Indian-title claim.

Nor do other equitable considerations suggest that OIN should be permitted

to avail itself of the equitable defense invoked in Cayuga and Oneida. For decades

in the Oneida land-claim litigation, OIN asserted that its unextinguished Indian

title was superior to the defendants’ long-settled fee title, denying that the

disruption to justifiable societal expectations ultimately found dispositive by this

Court might properly be considered. But upon the conclusion of the Oneida land-

claim litigation in 2011, OIN below urged dismissal of this action because Cayuga

and Oneida make “no exception for land owned by Indian tribes.” Supp’l Mem. 7

617 F.3d at 136. A determination that the Sherrill defense does not bar the claims

would not be a determination that, on remand, any particular remedy would be

appropriate. See City of Sherrill, 544 U.S. at 213 (“[Oneida II] reserved for

another day the question whether ‘equitable considerations’ should limit the relief

available to the present-day Oneidas.”) (citation omitted).

33 Oneida, 617 F.3d at 127, quoting Cayuga, 413 F.3d at 275.


32

(Dkt.285). But this argument, which the District Court erroneously adopted

without addressing the unique factual and equitable considerations at play here, is

wholly inconsistent with the express purpose for which OIN sought and obtained

all-purpose defendant party status – to assert a merits defense based not on the

superiority of its fee title but on the superiority of its Indian title. And OIN, until

recently a plaintiff in its own land-claim action, does not possess the same set of

societal expectations as the dominant society. OIN’s own actions have removed

this tribe-versus-tribe dispute from the realm of the “scheme of settled land

ownership” and “societal expectations” protected from disruption by the Sherrill

defense.

He who comes to equity must do equity. OIN stands on very different

equitable grounds from the “innumerable innocent purchasers”34

having no

connection to the historical injustice, the concern for whom formed the cornerstone

of the Sherrill equitable defense applied in Cayuga and Oneida. The Nation has no

justifiable expectations worthy of protection under the principles of federal equity

practice.

These unique circumstances make the concern that the relief sought arguably

implicates OIN’s fee title of secondary importance. Standing alone, the fact that

OIN voluntarily joined this litigation expressly to litigate Indian title and

34

Cayuga, 413 F.3d at 277, quoting Yankton Sioux Tribe v. U.S., 272 U.S. 351,

357 (1926).


33

possessory rights under the 1788 and 1794 treaties ensures that permitting this

claim to proceed would not pose the slightest risk of disruptive effects on the

settled scheme of land ownership. That the claims sought to be pursued arise from

a dispute among tribes as to which possesses the superior recognized Indian title,

rather than from a dispute between good-faith purchasers and a tribe asserting that

its unextinguished Indian title trumps numerous right-of-premption-based fee titles,

further ensures that settled expectations and the established scheme of land

ownership would not be threatened with even minimal disruption.

As noted above, the Sherrill equitable defense was applied to bar “legally

viable [claims].” 617 F.3d at 124. Even if Stockbridge’s possessory claim against

the defendants who assert right-of-preemption-based fee titles are found to be

barred, whether Stockbridge retains recognized Indian title will continue to be of

importance.35

Stockbridge owns a 122-acre property within the claim area, AC ¶ 4,

and whether it retains its recognized Indian title could be of significance to

Stockbridge’s rights under various federal statutory schemes. See, e.g. 25 C.F.R.

Parts 151.10 & 151.11 (different standards applicable to on- and off-reservation

secretarial trust acquisitions under 25 U.S.C. §465); 28 U.S.C. §§ 1492 & 2505

35 The Amended Complaint seeks declaratory relief in addition to ejectment and

damages. AC, Prayer, ¶¶ 1-3, A121. Paragraph 1 of the Prayer seeks a declaration

that OIN’s rights in the claim area have been extinguished and ¶ 3 seeks a

declaration that Stockbridge’s title to the claim area has never been extinguished.


34

(authorizing either house of Congress to refer claims to the United States Court of

Federal Claims).

Indian treaty rights and claims to land carry with them their own powerful

set of historical, legal and equitable underpinnings. Nearly 200 years of Indian-

law jurisprudence has recognized that this Country’s solemn guarantees, to which

our national honor has been pledged, are not to be lightly cast aside. While the

potential for widespread disruption to the dominant society’s long-settled

expectations may now “in appropriate circumstances, ... [bar] legally viable” land

claims,36

where treaty rights can be vindicated without such disruption, the federal

courts still have an unflagging obligation to do so.

The District Court erred in reasoning that the bar of the Sherrill equitable

defense would bar Stockbridge’s claims if OIN has waived its immunity.

Awarding possessory relief and damages in an Indian title dispute only tangentially

related to the scheme of settled land ownership would not be disruptive. In the

alternative, should the Court deem such relief disruptive, the unique nature of this

dispute ensures that, at the very least, the declaratory relief Stockbridge seeks

would not be disruptive. Finally, should this Court conclude that Cayuga and

Oneida are not distinguishable and would compel affirmance, this Court should

repudiate Cayuga and Oneida because they were wrongly decided for the reasons

36

Oneida, 617 F.3d at 124.


35

set forth in the following section.37

III. The District Court Erred in Applying the Sherrill Defense to Bar the

Tribe’s Claims Against the County and Municipal Defendants.38

Below, Stockbridge recognized that if the District Court were to follow the

Second Circuit rulings in Cayuga and Oneida, its land claim against the non-

intervenor defendants would have to be dismissed. But because Cayuga and

Oneida were wrongly decided, Stockbridge urged the District Court not to dismiss

its claims against the non-intervenor defendants.39

The District Court concluded it

was bound to follow Cayuga and Oneida and did not address Stockbridge’s

arguments why those decisions were in error. Slip Op.8, SPA8. Understanding

that the law of this Circuit binds this panel to adhere to earlier precedent, see

Oneida, 617 F.3d at 122, Stockbridge reasserts the arguments advanced below to

37

In Oneida, this Court stated that “[t]his panel is bound to adhere to the earlier

precedent of this Court in the absence of a decision by the Supreme Court or an en

banc panel of this Court calling that precedent into question.” 617 F.3d at 122

(citation omitted). In the likely event this Court finds Cayuga and Oneida

controlling, Stockbridge seeks to preserve the question whether they were wrongly

decided for en banc or Supreme Court review.

38

For the same reasons that the Sherrill defense should not bar the claims against

the Counties and Municipal defendants, it should not bar Stockbridge’s claims

against the State officials in the event it is determined that the Eleventh

Amendment is not a bar.

39

Dkt.No.295, Mem. in Opp. at 14, citing Ashutosh Bhagwat, Separate But

Equal?: The Supreme Court, The Lower Federal Courts, and the Nature of the

“Judicial Power”, 80 B.U. L. Rev. 967 (Oct. 2000).


36

preserve them for en banc or Supreme Court review.

A. The District Court Erred in Following Cayuga and Oneida

Because they Substitute the Court of Appeals’ Judgment for

Congress’ Express Judgment that an Action to Vindicate

Possessory Rights Should Not Be Barred by Any Time-Based

Defense.

1. In 1790, the First Congress determined that any conveyance of Indian

land made without congressional approval would be void. 25 U.S.C. § 177 (no

purchase of Indian land made without congressional approval “shall be of any

validity in law or equity.”). The Nonintercourse Act “codified the principle that a

sovereign act was required to extinguish aboriginal title and thus that a conveyance

without the sovereign’s consent was void ab initio.” Oneida II, supra, 470 U.S. at

245. By following Cayuga and Oneida, the District Court erroneously applied an

equitable bar to a claim seeking redress for transactions executed without

congressional approval and thereby validated illegal purchases in direct

contravention of the Nonintercourse Act’s express provisions. Oneida II, 470 U.S.

at 244 n.16 (quoting Ewert v. Bluejacket, 259 U.S. 129, 138 (1922)( “laches …

cannot properly have application to give vitality to a void deed and to bar the rights

of Indian wards in lands subject to statutory restrictions.”)).

2. In the Indian Claims Limitation Act of 1982, Pub. L. No. 97-394, 96

Stat. 1976, Congress ”established a system for the final resolution of pre-1966

[Indian] claims." Oneida II at 243. Congress fully considered the age of tribal


37

possessory claims and their potential for disruption when it extended the time to

file certain actions and left tribal title claims free of any time limitations. See, e.g.,

S. Rep. No. 1253, 92d Cong., 2d Sess. 2,4-5 (1972); H. R. Rep. No. 375, 95th

Cong., 1st Sess. 2-4, 6-7 (1977); H. R. Rep. No. 807, 96

th Cong., 2d Sess. 9 (1980);

S. Rep. No. 569, 96th

Cong., 2d Sess. 3 (1980); 123 Cong. Rec. 22, 170, 502, 504

(1977). The Act was passed eight years after the first Oneida land-claim decision

and after Congress had passed legislation settling Indian land claims in Maine and

Rhode Island. Oneida II, 470 U.S. at 253. The Oneida II Court noted that “the

statutory framework adopted in 1982 presumes the existence of an Indian right of

action not otherwise subject to any statute of limitations. It would be a violation of

Congress’ will were we to hold that a state statute of limitations period should be

borrowed in these circumstances.” Id. at 244.

Where Congress has enacted a specific statute addressing the claims, it is a

violation of Congress’ will for a court to invoke the common-law Sherrill defense

as a bar to suit. Oneida, II, 470 U.S. at 244. “Laches within the term of the statute

of limitations is no defense at law.” United States v. Mack, 295 U.S. 480, 489

(1935). 25 U.S.C. § 2415 codifies Congress’ thoroughly considered judgment

regarding the proper balance between the interest in vindicating Indian land rights

and avoiding disruptive litigation. “Courts of equity cannot, in their discretion,

reject the balance that Congress has struck in a statute.” United States v. Oakland


38

Cannabis Buyers’ Co-op., 532 U.S. 483, 497 (2001).

B. Cayuga and Oneida Stand in Irreconcilable Conflict with Oneida

II and Sherrill, Improperly Extending Sherrill to Bar a Claim and All

Remedies, Where Sherrill had Expressly Left Oneida II Undisturbed

and Confined Its Holding to Employing the Laches-Like Defense to Bar

a Particular Equitable Remedy.

In City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 221 (2005), the

Supreme Court stated that because “the question of damages for the Tribe’s ancient

dispossession is not at issue in this case ... we do not disturb our holding in Oneida

II.” Oneida II held that the Oneidas could “maintain [a damages] action for

violation of their possessory rights based on federal common law.” Id. at 236.

This Court’s rulings in Cayuga and Oneida erroneously invoked Sherrill for the

proposition that damages claims for ancient dispossession cannot be maintained.

Consequently, Cayuga and Oneida, by dismissing claims virtually identical to

those upheld in Oneida II and left undisturbed in Sherrill,40

eviscerated Oneida II

40

Cayuga’s attempt to characterize the damages award as a monetized version of

ejectment to which the Sherrill defense properly applies, while a convenient and

result-oriented means of closing the court-house doors to Indian land claims and

underruling controlling Supreme Court precedent, fails in light of Sherrill’s

specific reaffirmation of the validity and availability of money damages for such

claims under Oneida II. As Judge Hall noted in her dissent:

The contention that a damages award for either past fair rental value or

present fair market value would “project redress into the present and future,”

Maj. Op. at 275, in order to bring that award within the scope of the City of

Sherrill holding vitiates any reasonable meaning the Supreme Court could

have intended that phrase to have.


39

and altogether ignored Sherrill.41

In addition, Sherrill’s holding was plainly

confined to barring certain remedies and may not properly be extended to bar

claims and thereby deny relief altogether. Addressing the question expressly left

open in Oneida II—whether equitable considerations should limit the relief

available to the present day Oneidas—Sherrill recognized that the “substantive

question whether the plaintiff has any right” is very different from “the remedial

questions whether this remedy or that is preferred, and what the measure of the

remedy is.” 544 U.S. at 213 (quoting D. Dobbs, LAW OF REMEDIES § 1.2 at 3

(1973)). Declaring this distinction to be “fundamental,” id., the Sherrill Court

adopted the District Court’s statement on remand of Oneida II that “[t]here is a

sharp distinction between the existence of a federal common law right to Indian

homelands and how to vindicate that right.” Id., (quoting Oneida Indian Nation v.

County of Oneida, 199 F.R.D. 61, 90 (N.D.N.Y. 2000). Of course, the District

413 F. 3d at 290, n. 13 (Hall dissenting).

41

Even had Sherrill not reaffirmed Oneida II, Oneida II would still control: “[i]f

a precedent of this Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court the prerogative of

overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237 (1997)

(alteration in original) (quoting Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477, 484 (1989)); see United States v. Martinez, 413 F.3d

239, 243(2d Cir. 2005) (“‘courts should [not] conclude [that] more recent

[Supreme Court] cases have, by implication, overruled an earlier precedent.’”)

(quoting Bach v. Pataki, 408 F.3d 75, 86 (2d Cir. 2005)); U.S. v. Brennan, 650

F.3d 65, 98 n.40 (2d Cir. 2011); U.S. v. Gomez, 580 F.3d 94, 104 (2d Cir. 2009).


40

Court awarded damages in Oneida II, a case which Justice Rehnquist recognized

was an ejectment action. See Oneida Indian Nation v. County of Oneida, 414 U.S.

661, 683 (1974) (Oneida I) (Rehnquist, J. concurring).

By applying the Sherrill defense to bar the claim rather than a particular

remedy, the Second Circuit abolished the distinction between rights and remedies,

violating not only a foundational principle upon which the Court’s analyses in

Sherrill and Oneida II rested, but also the fundamental rules of federal equity

practice.42

Where, as here, Congress has specifically authorized the claim, courts

of equity are not free to reject Congress’ judgment and bar a claim. As the Court

noted in Oakland Cannabis Buyers’ Co-op., supra 532 U.S. at 497, “[t]heir choice

(unless there is statutory language to the contrary) is simply whether a particular

means of enforcing the statute should be chosen over another permissible means;

their choice is not whether enforcement is preferable to no enforcement at all.” See

Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308,

42

See Hecht Co. v. Bowles, 321 U.S. 321(1944); Weinberger v. Romero-Barcelo,

456 U.S. 305, 312 (1988) (equity’s function is to arrive at adjustment and

reconciliation between competing claims); D. Dobbs, 1 LAW OF REMEDIES 91 (2d.

ed. 1993) (Equitable discretion must follow “a principle of balancing various

ethical and hardship considerations.”). For these reasons, the Sherrill defense as

employed in Cayuga and Oneida is not an “equitable” defense at all: “New laches

is not properly an equitable defense. It is a defense and applies to Indian land

claims, but it does not seek to weigh the equities in a case. The new laches does

not provide any way for Indian tribes to combat it—their equities are never

weighed in this equation.” Kathryn Fort, Disruption and Impossibility: the New

Laches and the Unfortunate Resolution of the Modern Iroquois Land Claims, 11

Wyo. L. Rev. 375, 402 (2011).


41

332 and 333 (1999)(“Even when sitting as a court in equity, we have no authority

to craft a “nuclear weapon” of the law .... The debate concerning this formidable

power ... should be conducted and resolved where such issues belong in our

democracy: in the Congress.”).

IV. Stockbridge’s Claims Against State Officials are Not Barred by the

Eleventh Amendment.

A. The District Court Erred in Failing to Apply the Rule that

Jurisdiction is Determined at the Time an Action is Filed.

In Kulawy v. United States, 917 F.2d 729 (2d Cir. 1990), this Court set forth

the rule that is applicable in this case. There, a taxpayer filed suit to quiet title to

two automobiles seized by the government to satisfy plaintiff’s federal tax liability.

After the complaint was filed, the government sold the cars at public auction. The

government argued that once the sale had taken place, the District Court should

have dismissed the action for lack of jurisdiction. Rejecting the government’s

argument, this Court stated:

We find no ... merit in the government's alternative contention that the

District Court should have dismissed for lack of jurisdiction once the sale

had taken place. The government had a lien on the automobiles at the time

the suit was commenced, and the court plainly had jurisdiction at that time.

We see nothing in § 2410(a)(1) that permits the government to oust the court

of jurisdiction validly invoked.

917 F.2d at 733-734, comparing Bank of Hemet v. United States, 643 F.2d 661,

665 (9th Cir. 1981) (holding that Quiet Title Act, 28 U.S.C. § 2409a, confers

jurisdiction for quiet-title action where title to the property later sold was still


42

claimed by the government at time complaint was filed). See F. Alderete General

Contractors, Inc. v. United States, 715 F.2d 1476, 1480 (Fed. Cir. 1983) (in

government contracts action, “the decision below is at variance with the long-

standing rule in the Federal courts that jurisdiction is determined at the time the

suit is filed and, after vesting, cannot be ousted by subsequent events, including

action by the parties.”).43

Rather than apply the Second Circuit’s time-of-filing rule, the court below

erroneously relied on dictum in Kabakjian v. United States, 267 F.3d 208, 212 (3d

Cir. 2001) for the principle that the rule is not absolute and that “[s]ubsection (e) of

the Quiet Title Act (QTA) can be read to provide that the government can, after

suit is filed, sell the property in issue and thereby divest the District Court of

jurisdiction.” Slip Op. 5, n.5, SPA5. But in that case, the Third Circuit went on to

note that other courts suggest that subsection (e) of the QTA may not be so read,

citing Delta Sav. & Loan Ass'n v. IRS, 847 F.2d 248, 249 n.1 (5th Cir. 1988) and

Bank of Hemet, supra, and that the QTA was inapplicable in any event. It then

followed this Court’s Kulawy rule:

We therefore follow the general rule for determining jurisdiction, and

conclude that jurisdiction under § 2410 is determined by looking to the facts

43

The District Court was mistaken when it stated that “[i]ndependent action of the

parties has already wrought what Plaintiff sought to achieve through court order.”

The Tribe’s complaint sought more than merely ending the state officials’

possession of the parcel; it sought to “be restored to immediate possession of all of

the subject lands.” AC, prayer no. 4, A121.


43

existing at the time the suit was filed. The government cannot thereafter

divest the court of jurisdiction by selling the property in issue or releasing its

lien on the property. See Kulawy v. United States, (holding that government

cannot "oust the court of jurisdiction validly invoked" under § 2410 by

selling the property on which it had a lien at the time suit was commenced).

Kabakjian, 267 F.3d at 212 (citation omitted).

The District Court unsuccessfully attempted to distinguish the cases

applying the time-of-filing rule by noting, without further analysis, that all of them

involved statutory waivers of sovereign immunity and the court was “aware of no

authority applying that principle in the context of an Ex Parte Young action.” Slip

Op. 5, n.5, SPA5. But there is no principled basis upon which to distinguish the

applicability of the general rule in an Ex Parte Young action from its applicability

in the statutory-waiver context. The primary rationale behind the time-of-filing

rule – preventing the risk of manipulation of jurisdiction – is of equal concern in

both contexts. See Bank of Hemet, supra at 665 (“[time-of-filing rule] restrains

any tendency of the part of the government to manipulate its position subsequent to

the filing of the complaint so as to present a situation that falls between the cracks

of applicable waiver statutes.”); New Rock Asset Partners, L.P. v. Preferred Entity

Advancements, Inc., 101 F.3d 1492, 1503 (3d Cir. 1996) (“From the outset, the

underlying concern of the time of filing rule was the risk that parties would deploy

procedural tactics to manipulate federal jurisdiction.”).

The District Court erroneously reasoned that because New York no longer


44

possessed the land, the violation of federal law by the State officials had ceased

and there remained no basis for a prospective ejectment action against them. Slip

Op. 5, SPA5. However, as Kulawy makes clear, the proper course to follow was

not to dismiss the action but to determine whether the current possessor of the .91-

acre tract could be joined. 917 F.2d at 736; Cf. Brody v. Village of Port Chester,

345 F.3d 103, 118 (2d Cir. 2003).

Finally, the court below mistakenly opined that “it is unclear whether any

claim for ejectment, which is a legal remedy, may be asserted under Ex Parte

Young, which allows equitable relief.” Slip Op. 6, n.5. SPA6. (Emphasis in

original). The District Court’s skepticism is unfounded, however, as in Idaho v.

Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), Justice O’Connor’s plurality

opinion acknowledged the continuing validity of United States v. Lee, 106 U.S.

196 (1882) and Tindal v. Wesley, 167 U.S. 204 (1897) – both cases where the

Court permitted ejectment actions to proceed against government officials claimed

to be in wrongful possession of real property.44

In those cases “[a] court could find

44

The District Court’s reliance on Ford v. Reynolds, 316 F.3d 351 (2003) for the

proposition that Ex Parte Young is limited to equitable relief is misplaced. While

Ford was a Young action seeking injunctive relief, the language quoted by the

District Court has nothing to do with any supposed limitation of Young to equitable

relief. Rather, in concluding that “[t]here being no valid claim for prospective

injunctive relief in the complaint, Ex Parte Young has no application to this case,”

id. at 355, this Court was simply summarizing its findings that one claim for

injunctive relief was moot and the other did not involve irreparable harm, only

money damages.


45

that the officials had no right to remain in possession, thus conveying all the

incidents of ownership to the plaintiff, while not formally divesting the State of its

title.” 521 U.S. at 290. In Tindal, id.at 221, the Court stated:

The settled doctrine of this court wholly precludes the idea that a suit against

individuals to recover possession of real property is a suit against the state

simply because the defendant holding possession happens to be an officer of

the state and asserts that he is lawfully in possession on its behalf.

Because the District Court erred in failing to apply the rule that jurisdiction

is determined at the time an action is filed, its order dismissing Stockbridge’s

claims against the State officers should be reversed. 45

B. A Straightforward Inquiry into Whether an Ongoing Violation of

Federal Law is Alleged and the Relief Sought is Properly Characterized

as Prospective Establishes that the Eleventh Amendment Does Not Bar

Stockbridge’s Ex Parte Young Officers Suit.

After this action was filed in 1986, Eleventh Amendment jurisprudence

changed to preclude Stockbridge from seeking relief against the State itself. In

2004, Stockbridge amended its complaint to address this change in jurisprudence,

45

In Smith v. Reagan, 841 F.2d 28, 30 (2d Cir. 1988), this Court made clear that “a

state has a right to an early determination of the [Eleventh Amendment immunity

defense].” Consequently, because an appellate court may affirm the judgment of

the District Court on any ground appearing in the record even if the District Court

did not reach it, see State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada,

374 F.3d 158 (2d Cir. 2004), in the following section the Tribe will set forth the Ex

Parte Young arguments advanced below, which were not addressed by the District

Court.


46

invoke the fiction of an officers suit under the Ex parte Young doctrine46

and assert

only claims for prospective relief against state officials in their individual

capacities.47

Stockbridge seeks only to pursue an ejectment claim for future possession of

land against State officers in their individual capacities. It does not challenge the

State’s title to the subject land and asserts no claims against the State itself. In

addition, the Amended Complaint states no claim for money damages against the

State nor does it seek any declaratory or injunctive relief with regard to the State’s

exercise of regulatory authority over the land that is the subject of this suit.

Instead, and as to the State alone, Stockbridge seeks to recover only future

possession of a .91-acre parcel which, at the time the complaint was filed was

vacant, unused, classified as abandoned agricultural land, and apparently was

maintained by the adjoining landowner rather than the State.

The broad question raised by the First Amended Complaint and the State’s

Motion to Dismiss on Eleventh Amendment immunity grounds is whether an

46

The Young doctrine holds that because federal law preempts state law, states are

considered unable to act in violation of federal law, and any action by a state

official that violates federal law therefore cannot be attributable to the state. Thus,

an officer enforcing a state law that violates federal law is not exercising state

authority, and the state cannot clothe the officer in its immunity. Ex parte Young,

209 U.S. 123, 159-60 (1908).

47

The District Court construed Stockbridge’s “references to ‘individual

capacities’ as references to ‘official capacity.” Slip Op. 4, n.4, SPA4.


47

Indian tribe may ever, under any circumstances, ask a federal court to enforce

federal law protecting tribal possession of lands against an encroaching state. In

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), the Supreme Court

narrowed the application of the Ex parte Young doctrine to preclude actions that

implicate a state’s unique sovereign interest—but it stopped well short of declaring

that a tribe may never maintain a Young suit seeking only possession of tribal land

wrongfully occupied by state officers (as distinguished from a suit challenging a

state’s title to land).

Coeur d’Alene held that, in the particular circumstances of that case, a suit

against state officers would be barred. Noting that while “[a]n allegation of an

ongoing violation of federal law where the requested relief is prospective is

ordinarily sufficient to invoke the Young fiction,” 521 U.S. at 281, the Court found

that the special sovereign nature of a state’s title to submerged lands, which arises

from the equal footing doctrine of the Constitution, uniquely implicated the

sovereign interests of Idaho. Thus, “[u]nder these particular and special

circumstances,” id. at 287, the Court found the Young exception inapplicable and

the suit barred by the Eleventh Amendment.48

See The Supreme Court, 1996

48

In Western Mohegan Tribe and Nation v. Orange County, 395 F.3d 18 (2d Cir.

2004), this Court applied Coeur d’Alene to a claim “virtually identical” claim to

that of the Coeur d’Alene Tribe, id. at 21, but “express[ed] no opinion on the limits

of Coeur d’Alene’s applicability.” Id. at 23 (emphasis in original). Western

Mohegan, involving claims by a group purporting to be an Indian tribe but which


48

Term–Leading Cases, Ex parte Young Doctrine, 111 Harv. L. Rev. 269, 278

(1997) (“The Court’s decision in Coeur d’Alene carved a new and very narrow

exception to Young for submerged lands.”).

Thus, while it generally reaffirmed the vitality of the Young doctrine, the

Court did narrow its application in one sense: a federal court arguably now will be

required to examine more closely whether the State is the real party in interest

because an important or unique aspect of its sovereign domain is implicated.49

Justice Scalia’s subsequent statement in Verizon Maryland, Inc. V. Public Serv.

Com’n of Maryland, 535 U.S. 635 (2002), suggests that the inquiry into the

“special sovereignty interests” of a state is actually an inquiry into whether the

relief sought can truly be characterized as prospective: “In determining whether

the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court

need only conduct a ‘straightforward inquiry into whether [the] complaint alleges

was not recognized as such by federal, state or tribal governments, is inapposite

here. In contrast to Stockbridge’s claim for possession of a .91-acre tract of

abandoned farmland, that suit claimed lands that implicated special state

sovereignty interests, i.e., “areas currently being used as state parks, state wildlife

management areas, state-managed lakes and wetlands, state historic sites, the

Empire State Plaza—where the state capitol is located.” 395 F.3d at 20. 49

The plurality opinion makes it clear that the fact that a Young suit will affect an

interest of the State is insufficient reason for a federal court to refuse to apply the

doctrine: “Every Young suit names public officials, and we have never doubted the

importance of state interests in cases falling squarely within our past interpretations

of the Young doctrine.” 521 U.S. at 296.


49

an ongoing violation of federal law and seeks relief properly characterized as

prospective.’” Id. at 645, quoting Coeur d'Alene.

In Coeur d'Alene Justice O’Connor declined Idaho’s invitation to create a

real-property exception to the Young doctrine and instead acknowledged the

continuing validity of two cases where the Court permitted ejectment actions

seeking only prospective relief to proceed against government officials claimed to

be in wrongful possession of real property. The precedent in United States v. Lee,

106 U.S. 196 (1882) and Tindal v. Wesley, 167 U.S. 204 (1897), did not control in

Coeur d’Alene, however, because in those cases “[a] court could find that the

officials had no right to remain in possession, thus conveying all the incidents of

ownership to the plaintiff, while not formally divesting the State of its title.” 521

U.S. at 290.

Here, Stockbridge’s claim is like the legal claims asserted in Lee and Tindal

and differs from the Coeur d’Alenes’ and Western Mohegans’ claims for equitable

relief in several important respects. First, unlike the Coeur d’Alene Tribe’s claim,

Stockbridge’s claim against the State officers in this case is not the equivalent of a

quiet-title action. An action to quiet title is an action in equity, and Stockbridge

here seeks no equitable relief against the State officers. As noted above,

Stockbridge does not seek a declaration of its or the State’s title in the small parcel

at issue. As a result, the State would not be bound in future litigation by an order


50

ejecting State officers from the subject land. See Lee, supra, 106 U.S. at 222;

Tindal, supra, 167 U.S. at 223.50

And, unlike Coeur d’Alene and Western

Mohegan, Stockbridge’s Amended Complaint does not seek injunctive relief

against the State officers, much less the far-reaching relief sought in those cases

that would have enjoined state officers from enforcing comprehensive state

schemes to regulate submerged lands and navigable waters. Moreover, it is well

established that New York Indian land claims such as this are legal claims in

ejectment rather than equitable quiet title actions.51

The District Court erred by extending the Eleventh Amendment bar well

50

The Court in Tindall, id., stated:

It is said that the judgment in this case may conclude the state. Not so. It is

a judgment to the effect only that, as between the plaintiff and the

defendants, the former is entitled to possession of the property in question,

the latter having shown no valid authority to withhold possession from the

plaintiff; that the assertion by the defendants of a right to remain in

possession is without legal foundation. The state not being a party to the

suit, the judgment will not conclude it. Not having submitted its rights to the

determination of the court in this case, it will be open to the state to bring

any action that may be appropriate to establish and protect whatever claim it

has to the premises in dispute. Its claim, if it means to assert one, will thus

be brought to the test of the law as administered by tribunals ordained to

determine controverted rights of property; and the record in this case will not

be evidence against it for any purpose touching the merits of its claim.

51

Oneida Indian Nation v. County of Oneida, 464 F.2d 916, 920 (2d Cir. 1972),

rev’d on other grounds, 414 U.S. 661 (1974); Oneida Indian Nation v. County of

Oneida, 719 F.2d 525, 540 (2d Cir. 1983); see New York v. White, 528 F.2d 336,

338 (2d Cir. 1975).


51

beyond Coeur d’Alene and Western Mohegan to reach a claim that does not

challenge the State’s title or regulatory authority, but seeks only future possession

of a small plot of abandoned agricultural land never used or actually occupied by

the State, and which apparently was not even maintained by the State. In an

analogous case, this Court declined to extend Coeur d’Alene and Western

Mohegan to reach a claim that does not challenge the State’s title, but seeks only

future possession of property. In re Deposit Insurance Agency, 482 F.3d 612, 619

(2d Cir. 2007), held that where no special state sovereignty interests are involved,

the Eleventh Amendment does not “prevent[] a federal court from providing relief

from governmental officials taking illegal possession of property in violation of

federal law.” There, the Superintendent of Banks of the State of New York seized

two failed foreign banks’ assets and the Deposit Insurance Agency—the foreign

bankruptcy administrator of the two banks—sought possession. The

Superintendent objected because under New York law, the assets belonged to the

State and, as an arm of a state immune to suit under the Eleventh Amendment, she

was immune to an officers suit as well. Relying on Coeur d’Alene, the

Superintendent argued that the suit was the functional equivalent of a quiet-title

action implicating special state sovereignty interests.

This Court rejected the Superintendent’s argument, noting that while

granting the injunction might require her to relinquish possession, it would not


52

decree any claim of title against the state. Coeur d’Alene and Western Mohegan

were both distinguishable because in those cases “[m]ore was at stake than simple

possession or other incidents of ownership.” 482 F.3d at 620.

Coeur d’Alene and In re Deposit Insurance Agency make plain that Ex parte

Young retains its vitality today. Thus, “[w]here a plaintiff seeks prospective relief

to end a state officer’s ongoing violation of federal law, such a claim can ordinarily

proceed in federal court.” Coeur d’Alene, supra, at 288 (citation omitted).

However, after Coeur d’Alene, as In re Deposit Insurance Agency demonstrates, a

federal court must examine more carefully whether, notwithstanding that the

nominal defendants are state officers, the conduct sought to be stopped would

affect a special sovereign right or power exercised by officers on behalf of the

State, thus making the State the real party in interest. Such an examination here

reveals that, unlike Coeur d’Alene and Western Mohegan, no unique or important

state sovereign interest is at stake regarding a small tract of abandoned farm land.

The limited relief sought against the officers named in the Amended

Complaint would not bind the State by determining its title to real property or

foreclose its claim to the subject land in a future judicial proceeding. As stated

above, Stockbridge seeks no relief regarding the State’s exercise of regulatory

authority over the land. Therefore, the State is not the real party in interest and the

Ex parte Young doctrine is applicable.


53

Stockbridge has alleged that the right to possess the subject land has resided

with it since 1788 and has never been within the sovereign domain of the State of

New York. It would be improper for this Court to assume without factual

investigation that the State ever had any sovereign interest in possessing the land at

issue.

The order of the District Court dismissing Stockbridge’s claim against the

State officers as barred by the Eleventh Amendment should be reversed and the

case remanded for the District Court to determine whether the current possessor of

the land can be joined and, if so, whether the State possesses an important

sovereign interest in the land.

CONCLUSION

For the reasons stated, the Order and Judgment of the District Court

dismissing Stockbridge’s Amended Complaint should be reversed.

Respectfully submitted,

/s/Justin E. Driscoll, III /s/ Don B. Miller

Justin E. Driscoll, III Don B. Miller

BROWN & WEINRAUB, PLLC DON B. MILLER, P.C.

233 Broadway 1305 Cedar Avenue

New York, NY 10279 Boulder, CO 80304

(212) 566-4600 (303) 545-5533

[email protected] [email protected]

Attorneys for Plaintiff-Appellant Stockbridge-Munsee Community


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Don B. MillerPlaintiff-Appellant Stockbridge-Munsee Community

November 14, 2013


SPECIAL APPENDIX


Table of Contents

Page

Memorandum Decision and Order of the Honorable

Lawrence E. Kahn, dated July 23, 2013 ........................................ SPA1

Judgment of the United States District Court, Northern District

of New York, entered July 23, 2013, Appealed From .................. SPA10

Motion for Leave to Appear as Amici Curiae by the

Oneida Indian Tribe of Wisconsin and the Oneida

of the Thames Band, dated June 6, 1990 ...................................... SPA11

Decision and Order of the Honorable

Gustave J. Di Bianco, dated October 16, 1991 ............................. SPA17


Case 3:86-cv-Ol140-LEIK-DEP Document 302 Filed 07/23113 Paqe 1 of 9

UNITED STATES DISTRICT COlJRTNORTHERN DISTRICT OF NEW YORK

STOCKB RlDGE-MUNS EECOMMUNITY,

Plaintiff,

-against- 3:86-CV-1140 (LEKIDEP)

STATE OF NEW YORK; et aZ.,

Defendants.

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Stockbridgc-Munscc Community ("Plaintiff"), a federally recognized Native

American tribe, commenced this action on October 15, 1986. See Dkt. No. I. In its Amended

Complaint, filed on August 5, 2004, Plaintiff asserts claims under federal common law, 25 U.s.c.

§ 177 ("Nonintercourse Act"), and tJ1C l 794 Treaty of Canandaigua seeking possession of roughly

thirty-six square miles of land in the State of New York and related damages. See Dkt, No. 228

("Amended Complaint") ,-r,-r 4, 12,45-52. Now before the Court are three Motions to dismiss filed

by, respectively: (1) Defendant-Intervenor the Oneida Indian Nation of New York ("Oneidas"); (2)

Defendants the State of New York, the Governor of New York, the New York State Department of

Transportation, and the New York State Commissioner of Transportation ("State Defendants"); and

(3) the remaining Defendants, comprising two counties, five towns, and one village in tJ1C State of

New York ("County-Municipal Defendants"; collectively with the State Defendants, "Government

Defendants"). Dkt. Nos. 231 ("Oneida Motion"); 232 ("State Motion"); 291 ("County-Municipal

Motion"; collectively' with the State Motion, "Government Motions"). For the following reasons,

SPA1Case: 13-3069 Document: 40-1 Page: 67 11/15/2013 1093891 90


the Court grants the Motions and dismisses Plaintiffs claims.

II. BACKGROUND]

Plaintiffs primary reservation and principal situs are in the State of Wisconsin, but it claims

that a 36-square-mile tract ("New Stockbridge") within the State of New York was conveyed to it in

or before Ins and then unlawfully conveyed out of its possession in a series of transactions and

takings from 1818 to 1842. Am. Cornpl. '1I'1I 4,12,16-18,21-23,25-40,42,46,49. Roughly7.25

acres of that bact, composing a right-of-way for New York State Route 46, is excepted from

Plaintiff's claims. hi.: '1I 12. The only land that was still claimed by the State Defendants when

Plaintiff filed its Amended Complaint is a roughly .91-acre parcel. ~; see Okt.. No. 295 ("Responsc

to Government Motions") at 2 & n.5.

III its most recent filings, Plaintiff clarified that it "asserts no claims against the State itself"

and, as to the .91-acrc parcel, "seeks only to pursue an ejectment claim far future possession of land

against State officers in their individual capacities." Resp. to Gov't 1\.-10ts.at 2.2 Additionally, as to

the Oneidas, Plaintiff "abandons any claim based on the illegality of the original transfer, including

its second claim for relief under the Nonintercourse Act, 25 U.S.C. § 177." Dkt. No. 288

("Response to Oneidas' Motion") at 3.3 Plaintiff otherwise seeks declarations that the Oneidas'

interests in the subject lands were extinguished in 178S, that the transfers of the subject lands to the

State of New York were void, and that Plaintiff's lndian title has never been extinguished and

1 In resolving the Motions to dismiss, the Court takes the factual allegations in Plaintiff'sAmended Complaint as true, See Ashcroft v. Iqbal, 556 US. 662,678 (2009).

2 Plaintiff's claims against the State of New York and the New York State Department ofTransportation are therefore dismissed.

3 Citations to Plaintiff's Response to the Oneida Motion use the document's internal pagenumbers and not the numbers electronically affixed to the top of the document.

2



confers on Plaintiff a valid right of current possession, along with an order restoring possession and

awarding damages and disgorgement of unjust benefits accrued by Defendants. Am. Compl. at 16-

17.

III. SOVEREIGN IMMUNITY

A. State Defendants

J. Legal Standard

The Eleventh Amendment to the U.S. Constitution provides that "[tjhc Judicial power of the

United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted

against one of the United St.ates by Citizens of another Stat.e, or by Citizens or Subjects of any

Foreign State," including Native American tribes, U.S. Const. amend. XI; see Blatchford v. Native

ViII. of Noatak, 501 U.S. 775,782 (1991). "The 'state' for purposes of the Eleventh Amendment

generally includes state agencies and state officials sued in their official capacities, but not political

subdivisions." Rilev v. Town of Bethlehem, 44 F. Supp. 2d. 451,457 (N.D.N.Y. 1999) (citing

Monell v. Oep 't of Soc. Servs., 436 U.S. 658 (1978)). In Ex Part.e Young, 209 US. 123 (190,8), the

U.S. Supreme Court "carved out a 'narrow exception to the general. rule of Eleventh Amendment

immunity from suit.. '" Murrav v. New York, 585 F. Supp. 2d. 471,472 (W.D.N.Y. 2008) (quoting

Frew ex rei. Frew v. Hawkins, 540 U.S. 431,438 (201)4)). Under this exception, "'a plaintiff may

sue a state official acting in his official capacity-notwithstanding the Eleventh Amendment-for

prospective, injunctive relief from violations of fcdcrallaw." State Emps. Bargaining Agent

Coalition v. Rowland, 494 F.3d 71,95 (2d CiL 2007) (quoting In re Deposit Ins. Agencv, 482 F.3d

..,

.J



612, 617 (2d Cil'. 2007)).4

"In determining whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar

to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an

ongoing violation of federal law and seeks reliefproperly characterized as prospective." Verizon

Md., [nco v. Pllb. Servo Comm'n of Md., 535 U.S. 635,645 (2002) (alteration and internal quotation

marks omitted). "[A]n allegation of an ongoing violation of federal law is sufficient for purposes of

the Young exception." In re Deposit Ins. Ag.ency, 482 F.3d at 62I (citing Verizon Md., 535 U.S. at

646). "[The] inquiry concerning such allegations is limited to whether the alleged violation is a

substantial, and not frivolous, one; [a court] need not reach the legal merits of the claim." ~ (citing

In re Dairv Malt Convenience Stores, Inc., 411 F.3d 367,374 (2d Cir. 2005)). A party may sue

4 The locution "individual capacity" can generate confusion because it is ambiguous asbetween "official capacity" in the context of an Ex Parte Young suit for prospective equitable reliefand "personal capacity' in the context ofa suit for damages. Compare, e.g., Papasan v. Allain, 478U.S. 265,278 n.11 (1986) ("When a state official is Silled and held liable in his individual capacity,... even damages may be awarded."), and Kentuckv v. Graham, 473 U.S. 159, 165 n.l O (1985)("Personal-capacity actions are sometimes referred to as individual-capacity actions."), and id. at171 ("[T]he Court's Eleventh Amendment decisions required this case [under 42 U.S.C. § 1988] tobe litigated as a personal-capacity action .... "), with Papasan, 478 U.S. at 277 (''[An] official,although acting in his official capacity, may be Silled in federal court [under Ex Parte Young]."), andMurrav, 585 F. Supp. 2d at 472 ('''[T]he requirement for suing state officials in their individualcapacities [as opposed to the state itself] is an essential element of the Ex Parte Young doctrine."(quoting Saltz v. Tenn. Dep't ofEmp't Sec., 976 F.2d 966,968 (5th Cir. 1992) (second alteration inoriginal) (internal quotation marks omitted))), and id. ("A plaintiff may avoid! the EleventhA mendment bar to suit and proceed against ind ividual state officers, as opposed to the state, in theirofficial capacities, provided that his complaint (a) alleges an ongoing violation of federal law and(b) seeks relief properly characterized as prospective." (quoting In re Deposit Ins. Agencv, 482 F.3dat 618) (internal quotation marks omitted)). Because Plaintiff "seeks only to pursue an ejectmentclaim for future possession of land against State officers in their individual capacities" on the theoryof Ex Parte Young, the Court construes Plaintiff's references to "individual capacity" as referencesto "official capacity." Resp. to Gov't Mots. at 2. The distinction is important because "[i]n anofficial-capacity action in federal court, death or replacement of the named official will result inautomatic substitution of the official's successor in office." Graham, 473 U.S. at 166 n.11 (citingFED. R. CIV. P. 2S(d)(I); FED. R. ApP. P. 43(c)(1); SUP. CT. R.40.3).

4



under Ex Parte YOllJ1gto stop a present and continuing violation of federal law that is premised on

past state actions, but cannot obtain rcl icf that would be tantamount to an award of damages for

those past actions. See Papasan v. Allain, 478 U.S. 265,278,281 (1986); State Emps. Bargaining

Agent Coalition, 494 F.3d at 97-98.

2. Discussion.

Here, Plaintiff alleged in its Amended Complaint, as clarified in its subsequent filings, that

Defendants the Governor of New York and the New York State Commissioner of Transportation

possessed a .91-acre parcel of land to the exclusion of Plaintiff in violation of federal common law,

treaty, and statute. Am. Compl. ,-r~45-52; Resp. to Gov't Mots. at 2 & n.5. Plaintiff also indicated,

however, that it was informed in 201 (l that New York no longer held the parcel in question. Resp.

to Gov't Mots. at 2 n.5. Given New York's apparent release of the disputed Laudin 2010, Ex Parte

Young cannot support PLaintiffs claim because the alleged violation of federal law by the relevant

state officials necessarily has ceased. There is therefore no basis for a prospective ejectment action

against those officials, lndependent action ofthe parties has already wrought what Plaintiff sought

to achieve through court order. Accordingly, Plaintiff's claims against the Governor of New York

and the New York State Commissioner of Transportation are barred by the Eleventh Amendment

and therefore dismissed.'

5 Plaintiffrefers to tJ1Cgeneral principle that jurisdiction is determined at the time the suit isfiled, but the Court is aware of no authority applying that principle in the context of an Ex ParteYoung action. The cases Plaintiff cites involve, instead, statutory waivers of sovereign immunity.See Resp. to Gov't Mots. at 2 n.S. Nor is the general principle absolute even when it appLies. See,e.g., K@bakjianv. United States, 267 F .3d 208,212 (3d cu. 2(01) (observing that diversityjurisdiction can be destroyed subsequent to filing and that "[sjubscction (e) of the Quiet Title Actcan be read to provide that the government can, after suit is filed, sell the property in issue andthereby divest the district court of jurisdiction."). For the reasons stated supra, the Court concludesthat the circumstances of this case compel a finding that sovereign immunity bars Plaintiffs claim

5



B. Oneidas

J. Legal Standard

"As a matter of federal common law, an Indian tribe enjoys immunity from suit except

where 'Congress has authorized the suit or the tribe has waived its immunity. '" Garcia v.

Akwesasne Hous. Auth., 268 F.3d 76, 84 (2d Cir. 2001) (quoting Kiowa Tribe v. Mfg. Techs., Inc.,

523 U.S. 751,754 (1998». "A waiver of tribal sovereign immunity must be 'clear. '" Cavuga

Indian Nation of N.Y. v. Seneca Cnt')!., 890 F. Supp, 2d 240,248 (W.D.N.Y. 2012) (quoting Okla.

Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505,509 (1991»; accord

Garcia, 268 F.3d at 86 (citing C & L Enters., [nco v. Citizen Band Potawatomi Indian Tribe of Okla.,

532 U.S. 411,418 (2001». Waivers of sovereign immunity arc construed narrowly in favor of a

sovereign, sec Lane v. Pena, 518lJ.S. 187,192 (1996); Rupp v. Omaha.Indi.an Tribe, 45 F.3d 1241,

1245 (8th Cir. 1995); Seneca-Cayuga Tribe of Okla. v. Oklahorna ex reI. Thompson, 874 F.2d 709,

715 (Wth Cir. 1989), and the terms of a waiver "define that court's jurisdiction to entertain the

suit." United States v. Testan, 424 U.S. 392,399 (1976).

2. Discussion.

Plaintiff's original Complaint in this action, filed on October 15, 1986, asserted claims only

against the Government Defendants. Dkt, No.1. On or about June 19, 1987, the Oneidas moved to

intervene as a defendant "for all purposes." Resp. to Oneidas' Mot. Ex. D. The Court granted the

Oneidas' request to intervene on September 25, 1987. Dkt. No. 28; Resp. to Oneidas' Mot. Ex. Z.

against the state officials. Moreover, it is unclear whether any claim for ejectment, which is a legalremedy, sec, e.g., Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S.442,451 (1977), may be asserted under Ex Parte Young, which allows equitable relief. Sec, c.g.,Ford v. RevnoLds, 316 F .3d 351,355 (2d Cir. 2003) ("There being no valid claim for prospectiveinjunctive relief in the complaint, Ex Parte Young has no application to this case.").

6



Plaintiff contends that this clear waiver of the Oneidas' sovereign immunity in 1987 as to the claims

then being made in the original Complaint also encompasses Plaintiff's present claims against the

Oneidas, which Plaintiff added in its Amended Complaint in 2004. See Resp. to Oneidas' Mot. at

22-29. Construing the Oneidas' waiver narrowly in their favor, however, leads t]1C Court to the

oppos ite conclusion. A waiver of sovereign immunity even "for all purposes" includes only claims

then at issue ill!that action, and not other claims that might be added years in the future.

Accordingly, Plaintiff's claims against the Oneidas are dismissed on the ground of tribal sovereign

immunity.

IV. SHERRILL LACHES

A. Legal Standard

Laches is au affirmative defense, sec, c.g., Fendi Adele, S.R.L. v. Ashley Reed!Trading, IllC.,

507 F. App'x 26, 29 (2d Cir. zm 3), with a peculiar application-referred to herein as "Sherrill

laches" or "the Sherrill defense"-in the context of ancestral land claims such as this. See

generally, e.g., City of Sherrin v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005); Cayuga

Illdian Nation of N.Y. v. Pataki, 413 F.3d 266 (2d Cir. 2005) (holding laches applicable to ancestral

land claims at law even though laches is a defense in equity); Oneida Indian Nation of N.Y. v.

County of Oneid::!,6 t 7 F .3d 114, 127-28 (2d Cir. 2010) (holding that the ancestral-land-claim

version of laches does not require the clements of traditional laches). 'Three specific factors

dctcrrn ine when ancestral land claims arc foreclosed on equitable grounds: (1) 'the length of time at

issue between an historical injustice and the present day'; (2) 'the disruptive nature of claims long

delayed'; and (3) 'the degree to which these claims upset the justifiable expectations of individuals

and entities far removed from the events giving rise to the plaintiffs' injury. '" Onondaga Nation v.

7



New York, 500 F. App'x 87, 89 (2d Cir. 2012) (quoting Oneida, 617 F.3d at 127).

B. Discussion

Plaintiff "recognizes that if this Court is going to follow the Second Circuit rulings in

Cayuga, 413 F.3d 266, and Oneida, 617 F.3d 114, then it will have to dismiss the Tribe's claim

against the non-intervenor defendants," and urges the Court to discredit those cases. Resp. to Gov't

Mots. at 14 (citations truncated). The Court is bound to follow the precedents ofa higher tribunal

Plaintiff's claims against the County-Municipal Defendants therefore are dismissed."

V. CONCLUSION

Accordingly, it is hereby:

ORDERED, that the Government Defendants' Motions (Dkt, Nos. 232,291) to dismiss arc

GRANTED; and it is further

ORDERED, that Defendant-Intervenor the Oneida Indian Nation of New York's Motion

(Dkt.. No. 23 I) to dismiss is GRANTED; and it is further

ORDERED, that Plaintiff's Amended Complaint (Dkt, No. 228) is DISMISSED; and it is

6 As Plaintiff concedes, this conclusion would compel dismissal of Plaintiff's claims againstall non-intervenor Defendants; however, Plaintiffretracted its claims against the State of New Yorkand the New York State Department of Transportation as erroneously pleaded, see supra note 2 andaccompanying text, and the COUlthas determined that it does not have jurisdiction over Plaintiff'sclai ms againstthe Governor of New York and the New York State Commiss ioncr of Transportation.See supra P3UtIll.A. Nor would Plaintiff's claims against the Oneidas fare any better even if theCourt had jurisdiction under a waiver of the Oneidas' sovereign immunity, See supra Part lU.B.Plaintiff argues that its claims against the Oneidas did not accrue until the Oneidas purchased landin the contested area in the late 1990s and early 2000s, but tJ16 dispute has ancient roots and cannotsend up new shoots through the salted earth of the Sherrill defense whenever a future purchaser ofland in the contested area happens to be the Oneidas. Sec Resp. to Oneidas' Mot. at 5; cf. Oneida,617 F.3d at 126 ("[P]ossessory land claims-any claims premised on the assertion of a current,continuing right to possession as a result ofa flaw in the original termination ofIndian title-arc bytheir nature disruptive and ... , accordingly, the equitable defenses recognized in Sherrill apply tosuch claims." (internal quotation marks omittcd)).

8


Case 3:86-cv-Ol140-LEK-DEP Document 302 Filed 07/23113 Paqe 9 of 9

further

ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and

Order on a11parti es ..

Dated:

IT.lS SO ORDERED.

July 23, 2013Albany, NY

Lawreu.S. District Judge

9


Case 3:86-cv-01140-LEK-DEP Document 303 Filed 07/23/13 Page 1 of 1

* * * * * UNITED STATES DISTRICT COURT * * * * *

NORTHERN DISTRICT OF NEW YORK

JUDGMENT IN A CIVIL CASE

DOCKET NO 3:86-CV-1140 (LEKIDEP)

STOCKBRIDGE-MUNSEECOMMUNITY,

Plaintiff,-against-

STATE OF NEW YORK; et al.,

Defendant.

_____ JURY VERDICT. This action came before the Court for a trial by jury. The issues have been tried andthe jury has rendered its verdict.

xx DECISION by COURT. This action came to trial or hearing before the Court. The issues have been triedand a decision has been rendered.

IT IS ORDERED AND ADJUDGED that in the above entitled action, the case is DISMISSED and judgment is entered in favorofthe Defendants as against the Plaintiff, In accordance with the and MEMORANDUM-DECISION and ORDER ofthe HonorableLawrence E. Kahn, U. S. District Judge, dated July 23, 2013.

DATE: July 23, 2013 LAWRENCE K. BAERMANCLERK OF THE COURT

~-Courtroom Deputy to theHonorable Lawrence E. Kahn


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THE 3T .~T::: OF tl E\l YORK, . ~t ill . ,

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Co me No\,,; th e o nei de ~ n ~ji ilr: T r ibe of \1i!-COII S i n a no t ne o nr- f n aof t h e Tt: a c cs Ban o an t: ~ov c ~ t hi s (O ll rt fo r l e a v e t o a p poar as 3mi cicu r i ~e o n proccQd i n gs hcrei ~ on dcf enJdn t s ' Mo ti o n f o r Judg men t o nthe Pl e a ding s o r f o r xurarae r y .j udq roe n t , I n suppo r t of thoi r uo r r on ,t he Ono i c' a I ndi a n Tr ibe o t o i sc o n s i n an d Ll IC One id a o f I-:I l ' 'r banc sBa n d s t a t c :

1 . ProposPfl a n ic i have c ontinuousl~· and st ill d oof p l a i n t i Lf h o r o i n :; t oc k ~ d d g e -M u l l sCC Ln d i e u

s t oc kb r I rtqe , ~ I ,'IS(, C 0 11 t hc - t re ns r v r of s a r- a - L r orr

to pl aintit f ~ n J7 21' ,

~upport th 0 clai mCo mr-c n i t y r o NI ' '.,;t nc n ne i da I ill i o n

/. • T h e< raoe n tn q <lnt : o t t c ot o r e.r ti cl r- r r , 'rr o a t ',- of c e ne n d e i ...us ,7 'stat . '14 , will b(~ ,-.Hl dr p S 5~1 ' in t ~l P S ~ : p r o c coct i n qs , ·.,1 i ch pi o vi s i c-ii s th e b a e i e of r ('{~ 0 ral r cco q n i t f on o t r i be I l and c Le i r u« : bjoam ici in o t ho r lit igati on , i . e . , OnC'iiia l nci"'n ll il t ic n o f ~~ < .'... 'i on.. ,et al . v . Coun ty of Cne id o?l , e l a t , , 7{J -CIJ -15 , 7~ - C'., -} S7 ( N. C. rL Llr e t c r r e c to r-o L l c c t i ve Ly h e r o i n as l;"l~' One ida I a no c La i m ce u o s ,

3 . Stio ui d th e ~e [ i!flda nts S U CC€~~ i n t h e ir Llot icn he r(' , i t couI ,jr e s ul t i n th e ad0 i t iO ;l of rl~~ 3nd con ten t iol lS iss ues l o t I, e p~ndin~

on e I de Laru l c l e i rt Ci,S P :i a n .! th el <2 b y corap! i c e t e t h e t 1 i t i q a t l o n e nda t t c mp t s t o n •.-qc t, i a t c (j se l t l {~r. -:> nl of the S "' I~ a ~ .

n Ls t o r y 0, .p r o c oo u r nq s ,

r e s o L u t i o n o i

r e ce n tt.ho c.the

4 . Aci ci can intorlJ t flis Cour t o! l h pOn '.>ioa/Stockbridl) (' r c l et i o n s c s r n e y bc a r onsu c h i nf o r ma t Lo n bo i n q d i r o c t Ly r c l e v a u t, t oi 5 S U'_~ S r e i s e d i n cc L c nda n t s ' no t t o n .

5 . T hE< p r e s e ncc o f p ro po no u a rai c i . , il l no t, uE:: lay or comp Lt c a c c

t hvs~ pr o c l' c di n g s , in a sr.l u ~ h ~s am i ci o f fer th air rnenoranJuD ~ it. ilin

t he s cb cd u L e r c qu l r cc ' of part i e's h c- r e a nc am i c I e ctn re s s in t ne i rmemo r e n-tura on l y t h o s c i S$U 0 !:. a l r e ady rai s ed b y ct e-I c n.Ya n t s ofpa rti cula~ conc ~rn t o a r. i c i .


6 . Amici beli eve t ha t t he i r p r e s e n c » ina i d th e Co u r t in its co ns i rr e r a t i o n ofd e f e nda nts ' mo tio n uit ho ut pre j uri i cin9pa rti es .

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t nes e p r ocr-e d i nq s v i Llth~ i s su e ~ rai S0 d i n

th@ inte r ests of the '

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110 r0 . Pl ai ntif fconsent .

t he co ns e n t o f t h ega v e it s con so n r ,

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uh o r o Eo r e , t he one Lo e 'r r i be o f u i s c o n s l n a n d one i d e of l h ~~

'rh e rno s Ba nd r c s p ..- c t f u Ll y r eques t l c e vc- of t h is Cou rt t o e p pc a r a se m i c i u n t h r- p r o c ood i nq s o n d .. f. ' nd it n ts · ao t t o n "o r .111'1(J m~"n t on t.h o

Pl r~d i n g s ( I t for su nrna ry Ju(lg~cnL .

Rc s pcc t t u Ll y s ubm i t t c d ,

DtL. L~De an a rov e ree nGe r y Kelde rSy racu se Un i ve rsi t y La u SchoolErnest I. u h i t c Hal lS y r acu s e , N.Y . 1 3 2~2

Att ornoys for One i d a of tll~

'r h a rac s Ban d

iLL-- c;;~~~rlinda F . Lockl earPo s t 0(C icc Box 2 43Knox v i l l p , ~lrl . 2J75a

Franc is Skp nandorePos t of f i c e Bo x If, C)

o nc t c a , ut e • 5.; El :'A t t o rno y s f or Onei d.t r ndi e n

Trihe of lIisco nsin


UNITED S'r ~T ~S DI STRI CT COURTNORTHERfl D[ 51'tnCT O F NE;1 YORK

T ilE ~'l'OCl\nRI DGE-nmJ~;E~: I NDI AN connu-n T Y,a Ls o kn o ..rn 'IS th e FTOC ~:BRIDGE-rlUN~ EE n ANDCF iW UI CJ\ti INDIA1IS ,

Ci vi 1 Ac t i o n No .3 6 - C V- tl t]{'( J ud ge rl r ,, \· o y )

Plaintiff ,

TilE f,TATE OF NEil YORK , e t al . ,

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Th l..' On e i rte Indian 'r r il," 0 ;: ut s c o ns j n a n.t th e On e I da o f

the t-n eme s Ban el , he vi nq r-o v c d t h i s Co u r t [o r Lc a v e t o .r'PP(:':Jl elS

on t h o P l ead ing !'> o r sunrae r y .r u dq me n t , tine: i t e p p oo r i nq to rh i s

Court t ha t t h c p re s c n c e o f t[10St' t r i oo s "5 a m i ci ccu L c; <lid tho

Co urt i n i t s cons ide rat ion of th /> me t t o r s u e- t o r c- it wit hout:

pr c' j ud i c i ng t h e i n t e[ ~ s t s o[ dOy parti 0D ,

It i s b c rob y o r d o r od t h a t s a i d no t i o n Lo r L r-e v c t o Appo a r

as e n i c I Cu r t a e i s g rant e d ot'1d th e> n n c i d a l n d i a n 'rr I Le of tr i s c o ns i n

i n th "se p roceed ing s and t rle Cl crk is d i r(' (:l ~(l t o a cce p t ~ o r filing

t h e i r tte u o r andun in Op p o s i t Lo n t o nc I o nda n t s ' n ot ion Lo r .t u dq r-s-n t

on t ll ~ Plcadi l:g 0 : S U~Ga [y Ju dg ~0 n t .

IT I~ H~REBY ORDE RED \ ND DECR EE D , ria i · o t

United s t e t os Distri ct . j ud q o


mU TED ~ T}"'T E$ DI ST RI CT COURTN0 RT IIE fHJ DI~TRI CT OF ~a:l1 YOR K

THE S TOC KBR I DGE-tWN S EE ItWI AN COHMUNIT Y,a l so kn o wn as th e STaC K 1 ~ R J DG E- r l U N S E E BANDOF tlOHI CAN I NDI AN S ,

C i v i l Ac ti on No .R6 - CV - 1 1 4~

(Judg C' n c nv o y)

De [ entl a n t s .

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THE STATE o r ~lE:\l YORK , c c a I. ,

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_ _ _ _ _ _ _ _ _ _____ ____1

Af f ida vit o f Arl i nda F . Lockl e ar

1 . Th e und er s i gn ed i s a raoc n-o r i n g o o d st a ndin g of the t-c r s ofNo rt h Carolina , t he Di s t r ic t of Co l umb ia , a nd Ma ry land .

2 . Th e und er si g n e d i s c o uns e I o f r e c o rd fo r t he One id a I nd i a nTribe o f t r Ls c o n s i n i n Ortc i d a In d i a n Nati on of Ne w Yo r k, c t a 1. OJ .

Count y of One i da , e t a1. , Nos . 7 0 - CV- 3 5 and 7 4 - :::V-I H7 , No rthe r nDi s t r ic t of Ne w Yor k . Fr a o ~i s sk~ n a ndo re i s co - cou nsp l \/ i t h t h eund ersign e d, a lso r cp r e s nn t i n g t he One id8 I n di a n T ~ i t;p o fWiscons in . In t h e s e su i ts , r e f p rre d t o co ll e ct iv e ly hp r e i n a s th eOne i d a la nd c l a im cas ~s , p la in t i ff s ris sc r l t ri b~l l ~r l rt cl ~ i[~ s t oth e a r oe i n ttu d i s on an d o nci d a Co un t l o s k no v n .:15 t h c One i daRe s o r v a t i on .

3 . Daan a r evcmc n e nd Gar y Ke lder , wno a p pe a r on t h e f o r eg o i ngMotion f or Le a v e t o Ap p e ar as Ar.1 ic i wi th th e u n d e r s i g ne d , r ~p r p so nt

t il e On e id ~ or the Tha nos Band in th o Oneid ~ land c la im cases .

4 . Th e u nders i gned ha s r ep r e s ent e d the One id a I nd i a n Tr i be of~li s c onsi n i n t h 0 one id a la nd clail~ c ase s s i nce 197 7 and t hll S Il aspe rso n al k nowl o dq e o f p r oce e d i nq s a nd po siti on s taken t he r e i n b yhe r cl i ent an d o t hc r p la i nti f l s as t he y may r e J a r e to t no a r oeknown as N f~W Sr o c kb r i d qr- , p r c-nc n t Ly c l e i mc d by p La i nu i LfS t oc kb r id g ~-r 1 u ~sC'(> Comnuni ty he re in .

5 . As c o u ns e l of r e c o r d fo r the One ida I n d i an Tri be of li isconsi nin th e One i d a l an d c l a i m CLtS £? S , the u ndor s i q nod has cu s t o d y of( i les i n t he no w d ism iss e d On@ ida c lu i ~s case a gainst thp Un i t0ds t a t e s , i . e . , One i d a j no i a n Na t i on o f N,, ·.... Yo r k, o t rd . v , Ij n i t r-dS t a te s , Do cke t 3 01 , In di a n Claims Co ram i s s i o n , e nd t hu s has p e r s o ne Iknowl edg e of p rocr~d i ngs an~ p o s iti o flS t~k en th "t0i n b y ha r clj0n tand other p la i n t iff s a s t he y r ~ a y r elat e to t ile a r ea k nown ~ s r J n~


2

Stoc kbr i a ge .

6 . The foreg oing Mo t i o n f o r Lea ve t o ~p pca r as A~i ci is ma de fo rth e purposes of pr ote c ting the i n t e r est s o f the one ida In di a n Tr i b oof Hisco nsin a nc th e One id a of t h e> t'h ame s nand , r e p r e s e ot cd byne s s r s , B'r a v e ma n an d Ke l d er I i n t b e One ida land cLJ i n CnS(>5 an d toaid t his CO\lr t in it s del ibe rat ions hc r~i n .

7 . Th e un d ersign e d soug ht the co ns (, nt of p nr ti e s to th is cas" fortho appcaran c0 o f t h e One id a I nd i an Tr i tle or 11lsco0510 and Oneidao f th e Th a me s Band a s ami ci h r- r c i n , p Lu i n t I I f c o n s cn t s but t hodc fe nu a n t s d o n ot c o nse nt .

I d eclare un dor pe na lty of pe rju ry t l1 a t the fore go in g i s t rue a n(l

c o r rec t .

Post of fic e Bo x 24 1x no x v i l Le , ne ryj anc 2 17 S f-


UNITED STATES DI STRICT COURTNORTHERN DISTRICT OF NEW YORK

us G, "lJUI1TN. D. Of N. Y.

FILED

------------------nOCT1 LTHE STOCKBRIDGE-MUNSEE COMMUNITY,known as THE STOCKBRIDGE-MUNSEEBAND OF MOHICAN INDI ANS ,

V S.

alsoAT~ <_M.

\,,;i_v'.:; ... f j-; Y, (, •..<;

S 1. _ ... 5:=Plaintiff ,

86-CV-1140(Judge McAvoy)

•

THE ONEI DA INDIAN NATION OF NEW YORK,

Defendant Intervenor,

and

THE STATE OF NEW YORK , MARIO CUOMO , asGover nor of the State o f New York ; NEW YORKSTATE DEPARTMENT OF TRANSPORTATI ON, FRANKLI NE. WHITE , as Commiss ioner of Trans portati on;THE COUNTY OF MADISON, NEW YORK; THE COUNTYOF ONEIDA, NEW YORK ; THE TOWN OF AUGUSTA , NEWYORK; THE TOWN OF LINCOLN, NEW YORK; THE VILLAGEOF MUNNSVILLE, NEW YORK ; THE TOWN OF SMITHFIELD ,NEW YORK; THE TOWN OF STOCKBRIDGE, NEW YORK ;a nd THE TOWN OF VERNON, NEW YORK ,

Defendants .

AO 72A(Rev. sea

APPEARANCES:

NATIVE AMERICA N RIGHTS FUNDAttorneys for Pla i nt i f f1712 N. street , N.W.Washington, D.C. 20036

HON . ROBERT ABRAMSAt torney Genera l of the

s t a te o f Ne w YorkAt torney for Defendant

New York StateDepartment of La wJustice BuildingThe CapitolAlbany , New York 12 2 2 4

GOODWIN, PROCTOR & HOARAttorney for County and

Municipal DefendantsExchange Place

OF COUNSEL :

HENRY SOCKBESON, ESQ.

DAVID B. ROBERTS, ESQ.Ass t . Attorney General

ALLAN VAN GESTEL , ESQ.

RECEIVED

ocr 21 1991

N.A.A.F


Boston, Massac huset ts 02 109-2831CRAVATH, SWAIN & MOOREAttorneys f o r Defenda nt I n tervenors825 8th AvenueNew York, New York 10 019- 7 475

JOHN DeFRANCISCO , ESQ.Local Counse l forDefendant Intervenors1 21 East Wa t er St ree tSyracuse , New York 13 20 2

ARLINDA LOCKLEAR , ESQ .Attorney for Proposed Amicus Curiae

One ida Ind ians of WisconsinP .O . Box 605Jefferson , Maryland 21755

DAAN BRAVEMAN, ESQ .Couns el for Proposed Amicus Cur i ae

Oneida of the Thames BandSyracuse University Co l l e ge of LawErnest I . white Hal lSyracuse, New York 1 32 10

THOMAS D. BARR , ESQ.

•

AO 72AIR~y . 81621

GUSTAVE J. 01 BIANCO , u n ited states Magist rate-Judge

ORDER

This matter was r e f e rre d to t h e undersigned by the Ho no r a ble

Th oma s J. McAvoy f o r the di s posit ion of various p ret r ia l ma t t e r s

pending before the court .

The dispute in t h i s I ndian land claim action involves a six

mile square area of l a nd which is contained in the present Oneida

a nd Madison Counties . The Stockbr idge-Munsee Tribe (SBM) argues

t hat in t he l a t e 17 0 0 ' s i t acquired both aborig i nal and treaty-

recognized title to the land in question which was subsequently

r e l i nq u i s h e d in favor of New York state in violation of the Trade

and Interc ours e Act of 17 9 3 ( Nonintercourse Act), 1 s tat . 329

2


•

A072Araev. 8182)

,,I'II

-

(now c odi f e d a t 25 U. S.C . § 177).

Th e Stock bridge Indians' came from Massachusetts2 to New

York State at t he close of t he Revolutionary War . Between 1783

a nd 1786 , t he Stockbr idge moved f rom Massachusetts to New York

with the permiss ion of the oneida I nd i a ns to occupy a six mile

square t ract of l and in Oneida Country . Th e S8M allege that the

Oneida Indians gave the Stockbridge the six mile portion of land

t o u s e a nd e njoy . Pla i nt i f f a lleges that this title was later

conf i rmed by New York s tate in the Treaty of Fort Schuyler in

178 8 and in 17 9 4 by the United States i n t he Tr e a t y of

Cananda igua .

Plaintiff f urther claims that it was i mp r ope r l y deprived of

thi s l and (begi nning in 18 18 and ending in 1852) , through various

treaties a nd agre ement s with New York state which were not

approved by the Federa l Government as required by the

Nonintercourse Act.

The case was or iginally commenced against t he state of New

York , Governor Cuomo , the New York State Department of

Transportat ion , Franklin white , Commissioner, Madison and Oneida

Counties and the various towns of which the six mile square is

now a part . The Oneida Ind ian Nation of New York subsequently

, The SBM state t hat the Stockbr idge (Mohican Indians) andt he Munsee (De laware I ndians ) were amalgamated some time in the19t h Century and became t he SBM Community .

2 SBM presently reside in Wisconsin, but claim to beII po l iti c a l successors i n interest" to the Stockbridge Indians whocame f rom Massachusetts to l i ve in New York State in the l a t e170 0 's a nd ear ly 1800 ' s.

3


•

III

III move d for a nd was granted the s tatus of a defendant i nt e r ve nor .

According to t he New York Oneidas, the stockbridge came to

New York because the Oneidas, as part of the Iroquois Nation were

asked b y miss ionaries to take in groups of eastern indians . The

New York One idas claim that they allowed the Stockbridge to

occupy the land , but did not cede title to the Stockbridge.

The present par ties have submitted motions and c ross-motions

f o r summary judgment . 3 In June of 19 9 0, the Oneida I ndians of

Wisconsin and the Oneida I nd i ans of the Thames Band submitted a

motion t o file a brief as Amicus curiae . The plaintiff supports

j t h i s motion , but t he defendants and the de fenda nt i nt erve norsIII submitted papers in oppos i tion t o the motion . Unfortunately,

none of the papers associated with this mot ion were f iled by the

Clerk 's Office i n t he Northern Di s t ric t of New York and t he

II mot ion d i d not appear on the docket s heet of thi s action .

At t he oral argument held before the undersigned on the

AQ 72A(Rev 8:82)

Ii

Ii

summary j Udgment motions, it was first discovered by t h i s court

that a pending motion t o f i le an a micus br ief ex i sted. Be c a us e

t he documents were not i n t he fil e , this court ordered t he

parties to sUbmit copies of the papers for the court's

consideration . The court may now proceed to consider the motion

by the pr oposed amici .

Additionally, prior to oral argument, but after the

3 The plaintiff moved for par tial summary jUdgment againstal l defenda nts and the defendant i nt e r venor s . The State, Countya nd Municipal defendants joint ly moved for summary jUdgmentagainst t he plaintiff. The defendant intervenors have also fileda cross-motion for summary judgment.

4


•

s upport ing papers had been f i led by the parties , the State

defendants sent a letter t o the court indicating that a r e c e nt

Supreme Court decision would prevent the instant law suit by the

Stockbridge-Munsee Community against the State of New York and

the of f icia l s the r e o f. The case was decided by t h e Supreme Court

on June 2 4 , 19 91 . Blatchfor d v . Noatak , III S. c t . 2578 (1991).

This court has also been made awa re that a very similar if

not identica l i s sue ha s be en presented in a n Indian land claim

action that i s current ly pending be f o r e Chief Judge Nea l P.

McCurn. The issue in J udge McCurn 's c a s e has been fu l ly briefed

and argued . Gi v e n the possible jurisd ictional importance of the

Blatchford c ase, t h i s court finds i t necessary for all parties in

the i nsta nt act ion to brief the Eleventh Amendment issue. Thus

in a ddit ion t o deciding the motion to file an amicus brief, this

c ou rt wil l a l so order t he parties t o submit briefs on the

Eleventh Amendment i s s ue s raised by Blatchford.

DISCUSSION

Motion to file an Amicus Brief :

AQ 72AIRev. 8.621

The term amicus curiae means " f r i e nd of the court . 1I See

II United states v. Gatti , 755 F. Supp. 1157 , 1158 (E .O.N .Y . 1991).,Th i s de finiti on ha s been interpr eted to mean that t he amicus

serves for t he be ne fi t of t he cour t and assists t he court in

cases of pUblic interest and on some matter about which the judge

may be doubtfu l or mistaken . Leigh v. Engle , 535 F. Supp . 418,

419 (N. D. I ll . 1982) (c itations omitted). See also United states

5


AO 72AtAt;lv. Sttm

I!

II

'I,I

I

'I

I

v . Gotti , 755 F . Supp . at 1158 .

In Leigh , the court noted that historically, the amicus i s

impartial and advises the court " in order that justice ma y b e

done " , r a t he r than advocating a particular point of view in order

t ha t one of t he parties may win . 535 F . Supp. at 420 .

Specif i cal ly , t he court i n Leigh sta t e d t h a t " i f the p roffer

comes from an individual with a partisan , rather than impartial

view , t he motion for l e a ve t o file an amicus brief is t o be

denied . ... " I d . (citing C. Rembar , The Law of the Land (1980» .

Mo r e recen t c a se law r ecog ni zes t hat by the natu r e of the

adversary system, the amicus is not total ly impartial , but may

serve t o provide a complete presentation of complex issues in

order tha t t he court may r e a c h the proper conclusion . Gotti , 755

F . Supp . at 1158 . Court s do , howe v e r , agree that because t he

amicus participates i n t he action i n order to assist t he court ,

t h e e xtent of that participation is solely within the d iscretion

of the court . Id . ; Leigh , 5 35 F. Supp . at 420. See also Linker v.

c us tom-Hilt Machiner y . I nc. , 59 4 F. Supp . 894, 897-98 (E .O . Pa.

198 4 ) (citi ng Alexander v . Hall, 6 4 F.R.D. 152, 155 (D.S .C.

1974» . The court may determine whether i t finds the informat ion

timely or useful in its dec ision . Leigh , 535 F . Supp . at 420 .

I n the instan t case , the proposed amici are clearly no t

i mpa r t i al . I n fact , t he ir br ief i ndicates that the resolution of

t he instant action i n favor of the defendants might have a

deleterious effect upon their own pending land claim actions.

Proposed amici a l s o claim , however , t ha t they can assist the

6


•

AO 72AlRev. 8,82)

cour t with t he historical background o f the One ida/ Stockbrid ge

re lations in or der that the court may c ons i der a l l the r ele va nt

information in making its decision.

Proposed amici cite United States v . Yonkers Contract ing

Co. , 697 F . Supp. 779, 781 (S.D .N.Y. 1988 ) for the p r oposit i on

that an interested non-pa r t y may offer assistance as an amicus .

This court finds, however , that it is not 50 much the intere s t of

t he amic i tha t i nfluenc e s the court 's decision , rather it i s t he

need for the information that has persuaded the court to r e j ect

the proposed sUbmission . A review of t he d ocuments t hat have

already been fil ed in conjunction with the mot i ons for s ummar y

j Udgme nt shows that al l the arguments made by the proposed ami c i

ha ve be e n briefed a nd a nswered by the existing parties in the

action. The c a s e s cited by the propos ed amic i ha ve been c ited to

the court by the existing parties, and f or purpos e s o f t he

summary judgment motions , the c ourt finds t hat it i s unnece s s ary

to grant the motion .

Notw i thstanding t he above decision , the c ourt understands

that t he proposed ami c i do have relevant knowlege o f t he fact s

sur r ounding the Stockbridge/Oneida rela tionship . Thus , t he

mot i on will be denied wi t hou t pre j ud ice to future applications .

WHEREFORE , based on the above, it is hereby

ORDERED, that the motion t o file a n amicus brief i s denied

without prejudic e, and it is further

ORDERED, that the d e f endant s ha ve fourteen ( 14) days from

7


•

'\072/0,'Rev. 8,a2l

'I,

'I

"

,'I!

receipt of this order within which to file briefs discussing the

effect of Blatchford on the instant action , and the plaintiffs

have fourteen (14) days after the filing of the defendants'

papers within which to respond to those arguments.

United states Mag~strate Judge

Dated: October /~ • 199 1Syracuse , New York

8


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