617 F.3d 114 (2nd Cir. 2010), 07-2430-cv(L), Oneida Indian Nation of New York v. County of Oneida

Docket Nº:07-2430-cv(L), 07-2548-cv(XAP), 07-2550-cv(XAP).
Citation:617 F.3d 114
Opinion Judge:DEBRA ANN LIVINGSTON, Circuit Judge:
Party Name:ONEIDA INDIAN NATION OF NEW YORK, Oneida Tribe of Indians of Wisconsin, Oneida of the Thames, Plaintiffs-Appellees-Cross-Appellants, v. COUNTY OF ONEIDA, County of Madison, Defendants-Cross-Appellees, United States of America, Intervenor-Plaintiff-Appellee-Cross-Appellant, State of New York, Defendant-Appellant-Cross-Appellee.
Attorney:Denise A. Hartman, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrew D. Bing, Deputy Solicitor General, on the brief, and Dwight Healy, White & Case, LLP, New York, NY, of counsel), for Andrew M. Cuomo, Attorney General of the State of New York, Albany, NY, for Defendan...
Judge Panel:Before: McLAUGHLIN, LIVINGSTON, Circuit Judges, and GERSHON, District Judge. Judge GERSHON concurs in part and dissents in part in a separate opinion. GERSHON, District Judge, concurring in part and dissenting in part:
Case Date:August 09, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 114

617 F.3d 114 (2nd Cir. 2010)

ONEIDA INDIAN NATION OF NEW YORK, Oneida Tribe of Indians of Wisconsin, Oneida of the Thames, Plaintiffs-Appellees-Cross-Appellants,

United States of America, Intervenor-Plaintiff-Appellee-Cross-Appellant,

v.

COUNTY OF ONEIDA, County of Madison, Defendants-Cross-Appellees,

State of New York, Defendant-Appellant-Cross-Appellee.

Nos. 07-2430-cv(L), 07-2548-cv(XAP), 07-2550-cv(XAP).

United States Court of Appeals, Second Circuit.

August 9, 2010

Argued: June 3, 2008.

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Denise A. Hartman, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrew D. Bing, Deputy Solicitor General, on the brief, and Dwight Healy, White & Case, LLP, New York, NY, of counsel), for Andrew M. Cuomo, Attorney General of the State of New York, Albany, NY, for Defendant-Appellant-Cross-Appellee State of New York.

Kathryn E. Kovacs, U.S. Department of Justice, Washington, D.C. (Ronald J. Tenpas, Acting Assistant Attorney General, Craig Alexander, Elizabeth Ann Peterson, U.S. Department of Justice, Washington, D.C., on the brief, and Thomas Blaser, U.S. Department of the Interior, Washington, D.C., of counsel), for Intervenor-Plaintiff-Appellee-Cross-Appellant United States of America.

Michael R. Smith (David A. Reiser, on the brief), Zuckerman Spaeder LLP, Washington, D.C., for Plaintiff-Appellee-Cross-Appellant Oneida Indian Nation of New York.

Arlinda F. Locklear, Washington, D.C., for Plaintiff-Appellee-Cross-Appellant Oneida Tribe of Indians of Wisconsin.

Carey R. Ramos, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Plaintiff-Appellee-Cross-Appellant Oneida of the Thames.

David M. Schraver (David H. Tennant, on the brief), Nixon Peabody LLP, Rochester, NY, for Defendants-Cross-Appellees County of Oneida, County of Madison.

John Dossett and Virginia Davis, National Congress of American Indians, Washington, D.C., and Kim J. Gottschalk, Native American Rights Fund, Boulder, CO, for Amicus Curiae National Congress of American Indians.

Before: McLAUGHLIN, LIVINGSTON, Circuit Judges, and

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GERSHON, [*] District Judge.

Judge GERSHON concurs in part and dissents in part in a separate opinion.

DEBRA ANN LIVINGSTON, Circuit Judge:

We are once again called upon to consider the availability of relief to Indian nations alleged to have been deprived long ago of their ancestral lands by the State of New York in violation of federal law. We adjudicate these ancient claims, dating back over two hundred years, against the background of over thirty years of litigation here and in the Supreme Court. These earlier cases, involving both present plaintiffs and the Cayuga Indian Nation, frame the issue now before us and in large measure determine its outcome.

In 1970 the Oneida Indian Nation of New York (" New York Oneidas" ) and the Oneida Indian Nation of Wisconsin (" Wisconsin Oneidas" ) brought suit-a " test case" -seeking from the Counties of Madison and Oneida in New York State two years of fair rental value (for 1968 and 1969) for about 872 acres occupied by these counties. This land represented a small portion of certain land ceded by the Oneida Indian Nation, the plaintiffs' ancestors, to New York State in 1795 in alleged violation of both federal treaties and the Trade and Intercourse Act (" Nonintercourse Act" ), Act of July 22, 1790, ch. 33, 1 Stat. 137 (1790) (codified as amended at 25 U.S.C. § 177), which prohibits sales of tribal land without the consent of the United States. The case reached the Supreme Court. The Court concluded that because the complaint asserted a current right to possession of the lands that existed as a matter of federal law, the plaintiffs had satisfied the well-pleaded complaint rule: " The claim may fail at a later stage for a variety of reasons; but for jurisdictional purposes, this is not a case where the underlying right or obligation arises only under state law and federal law is merely alleged as a barrier to its effectuation." Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 675, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (" Oneida I " ). Subsequently, the Court determined in County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (" Oneida II" ), that the New York and Wisconsin Oneidas, along with the Oneida of the Thames Band Council (collectively, " the Oneidas" ), could maintain a cause of action for violation of their possessory rights to these aboriginal lands based on federal common law. See Oneida II, 470 U.S. at 236, 105 S.Ct. 1245. In the very decision recognizing that such a cause of action could be maintained, however, the Court noted that " [t]he question whether equitable considerations should limit the relief available to the present day Oneida Indians" had not been addressed and that it expressed " no opinion as to whether other considerations may be relevant to the final disposition of [the] case," which it remanded for further proceedings. Id. at 253 n. 27, 105 S.Ct. 1245. On remand, the district court awarded damages in the amount of $18,970 from Madison County and $15,994 from Oneida County, along with prejudgment interest, for a total judgment of about $57,000. Oneida Indian Nation of N.Y. v. County of Oneida, 217 F.Supp.2d 292, 310 (N.D.N.Y.2002).

The present case was brought in 1974, but lay dormant for the better part of 25 years while the parties explored settlement

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and the Oneidas pursued the preceding " test case" on its two separate trips to the Supreme Court. See City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 209, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005) (noting that the present litigation, " held in abeyance during the pendency of the test case," resumed only in 2000); see also Oneida Indian Nation of N.Y. v. New York, 194 F.Supp.2d 104, 113 (N.D.N.Y.2002). The instant case involves the Oneidas' claim not to 872 acres and to two years of rent, but to approximately 250,000 acres of ancestral lands, and to relief going back over two hundred years, to the period between 1795 and 1846 when these lands were conveyed in multiple transactions to the State of New York. During the intervening years from 1974 until today, moreover, a subsequent decision of the Supreme Court, City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386, and this Court's decision in Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir.2005), cert. denied, 547 U.S. 1128, 126 S.Ct. 2021, 164 L.Ed.2d 780 (2006), have explored in ways pertinent to our decision here the questions that remained undecided following Oneida I and Oneida II -namely, whether and in what circumstances equitable principles might limit the relief available to present day Indian tribes deprived of ancestral lands many years ago in violation of federal law.

The Oneidas, along with the United States, which intervened in this litigation in 1998, asserted a variety of claims before the district court. In an order dated May 21, 2007, the United States District Court for the Northern District of New York (Lawrence E. Kahn, District Judge), relying principally on this Court's decision in Cayuga, granted in part a motion for summary judgment filed by the State of New York and the Counties of Oneida and Madison on the ground that all but one of the plaintiffs' claims were barred by laches. See Oneida Indian Nation of N.Y. v. New York, 500 F.Supp.2d 128, 137 (N.D.N.Y.2007) (" Oneida III " ). Based on the Supreme Court's decision in Sherrill, Cayuga had previously determined that equitable defenses apply to " disruptive" Indian land claims, and that possessory claims-claims premised on the assertion of a continuing right to possession of ancient tribal lands-are by their nature disruptive, in that they call into question settled land titles. See Cayuga, 413 F.3d at 274-75. The district court in the present case held that laches barred all the plaintiffs' possessory claims, but that the plaintiffs could proceed against the State of New York alone with what the district court termed a " nonpossessory," contract-based claim for unconscionable consideration in connection with the original land transfers. This Court granted New York's petition pursuant to 28 U.S.C. § 1292(b) for leave to appeal, as well as the cross petitions of the Oneidas and the United States.

Here, the Oneidas and the United States assert primarily that the district court erred in dismissing any of the Oneidas' claims, contending both that this Court's decision in Cayuga was incorrectly decided and that, even accepting that Cayuga is controlling here, the defendants failed to establish the necessary elements of a laches defense. The United States defends the district court's decision to the extent it permitted plaintiffs to proceed with a " nonpossessory" claim, while at the same time it articulates an alternative claim to that recognized by the district court, grounded not in federal common law but in the Nonintercourse Act.1 Meanwhile, New

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York State argues principally that the district court erred in permitting a claim to proceed on the theory that New York paid unconscionably inadequate consideration for the subject lands and that reformation of the original agreements to provide for appropriate compensation is an available remedy. It contends, inter alia, that this claim, as well as the alternative claim pressed by plaintiffs on appeal, falls within Cayuga 's recognition that equitable considerations bar the adjudication of disruptive Indian land claims. New York contends, in addition, that its sovereign immunity bars the contract-based claim on which the district court permitted the Oneidas to proceed.

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