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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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.
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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).
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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).
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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)).
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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))).
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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.
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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.
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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).
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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).
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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.
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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).
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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).
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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
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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.
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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,
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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.
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(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).
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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.
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(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.
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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).
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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
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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
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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.
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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).
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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).
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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
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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.
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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
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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.
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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.
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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.
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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
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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.
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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
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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).
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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
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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.
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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
Case: 13-3069 Document: 40-1 Page: 64 11/15/2013 1093891 90
SPECIAL APPENDIX
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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
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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,
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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
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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
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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
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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
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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
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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
SPA7Case: 13-3069 Document: 40-1 Page: 73 11/15/2013 1093891 90
Case 3:86-cv-Ol140-LEIK-DEP Document 302 Filed 07/23113 Paqe 8 of 9
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
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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
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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
SPA10Case: 13-3069 Document: 40-1 Page: 76 11/15/2013 1093891 90
ARLINDA F. LOCKLEAR
Cl erk of Co ur tNorthe r n Distr ic t of Nc~ Yo r kU.$ . Fe de r a l Buildi ng & Court h o u s e1 5 He nr y S t ree tBi n gha ~t on , Nc~ Yor k 1 39 ~ 1
P,O D. 24_~
KNOXVillE, MARYLAND 2 17~H
TeJeph o.... eon ln 4.664 6
.Ju n e I) , 199~
Rc : S t.oc k b r i d q c -f f uns ce Co mmu n i t y , e t a L .v . Stat e of New Yo r k , e t al . ,a6 - CV- I IHI
u ee r t:adam/ Sir :
Pl e as e fin d fo r fil in g i n t hc above cap t ioned c e s e till'e nclosed 11o t io n f o r Lp av e t o Apppa r as An ic i C u r i ae , Af f id av i t orCounsel , Orde r , a nd r1e ~o r and uQ i n Op pos ition to Defen d a n ts ' flc t ionfo r Judgme nt o n th e Plearlings or Surnma r y Judg me n t . Ami c i co notr e q u e s t o ra l a r g une n t on t h e ir mot io n i or leave to appear .
Th e p a rt i es i n th e a b o v e capti o ne d case ha ve bee n s er v e d onth is dat e with a cop y o f t h e e nc losed .
S i nce re l y ,
~Ll;2~e-Arl inda F . Loc klea r
RECEIVEDJUN 8 1990
N.A.R.F.WASHINGTON
SPA11Case: 13-3069 Document: 40-1 Page: 77 11/15/2013 1093891 90
UfJITED S TA7 f~ OI ~ 1'RI C1 ' COUR1'N ORTHF.P~ Or STRICT OF Il EIJ YORK
THF ZTOC KBR IOGE - Htl NS E E HiD IMl COll!\u NITY ,al s o k noll n a s ttJe S TOC KARIDCE -t1U NS EE BANDOF f10IlI CA(J ItlO TAtJ $ ,
Ci v il Action No ,~fi -CV - l ! 4r;
(JI: ~lg( ' nc Avo y)
no t i or, [ 0 r Le-er vc>t o e p p r-a [ asAn i c I c ur t ec
n c Lo nu a r.ts ,
Plaint i ff .
THE 3T .~T::: OF tl E\l YORK, . ~t ill . ,
v .
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11)
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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 .
SPA12Case: 13-3069 Document: 40-1 Page: 78 11/15/2013 1093891 90
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 .
2
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 '
7 . Ara i c I s o uqb t
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 ,
r.a r t i e sb ut thf>
1:0 t ho ir .'J P P(·i1[<lnct'"or -f cnue n t s :jj,i not
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
SPA13Case: 13-3069 Document: 40-1 Page: 79 11/15/2013 1093891 90
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 . ,
v .
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_ _ _ _ _ _ ___ _ _ _ _ ____ __1
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
SPA14Case: 13-3069 Document: 40-1 Page: 80 11/15/2013 1093891 90
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 .
pla in t iff ,
THE STATE o r ~lE:\l YORK , c c a I. ,
v.
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111I)
_ _ _ _ _ _ _ _ _ _____ ____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~
SPA15Case: 13-3069 Document: 40-1 Page: 81 11/15/2013 1093891 90
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-
SPA16Case: 13-3069 Document: 40-1 Page: 82 11/15/2013 1093891 90
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
SPA17Case: 13-3069 Document: 40-1 Page: 83 11/15/2013 1093891 90
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
SPA18Case: 13-3069 Document: 40-1 Page: 84 11/15/2013 1093891 90
•
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.
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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)
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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.
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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
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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
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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
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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
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