Narragansett Tribe, Etc. v. So. RI Land Devel. Corp.

Decision Date23 June 1976
Docket Number750005.,Civ. A. No. 750006
CourtU.S. District Court — District of Rhode Island



Charles G. Edwards, Providence, R. I., Barry A. Margolin, Boston, Mass., for plaintiff.

Frank L. Hinckley, Jr., Narragansett, R. I., John P. Toscano, Jr., Westerly, R. I., Archibald B. Kenyon, Jr., Wakefield, R. I., Harold P. Soloveitzik, Westerly, R. I., Joan M. Montalbano, N. Providence, R. I., Francis Castrovillari, Cranston, R. I., David W. Dumas, Providence, R. I., Charles Nardone, Vincent Naccarato, Westerly, R. I., Allen P. Rubine, Asst. Atty. Gen., James A. Jackson, Providence, R. I., for Southern R. I. Land Development Corp. et al.

Allen P. Rubine, Asst. Atty. Gen., Providence, R. I., for Dennis Murphy.


PETTINE, Chief Judge.

Plaintiff in these consolidated actions has filed a motion to strike certain defenses raised by all or some of the defendants as insufficient as a matter of law, pursuant to Rule 12(f), Fed.R.Civ.P. Both the standards for determining this motion and the sufficiency of the challenged defenses are at issue and have been fully briefed.


It is not enough merely to echo the oft-repeated statement that courts should treat motions to strike with disfavor and be slow to grant them. See 5 Wright & Miller, Federal Practice and Procedure: Civil § 1380 at 783; 2A Moore, Federal Practice paragraph 12.21. We must also examine that concept's underlying rationale. This was carefully explored in Louisiana Sulphur Carriers, Inc. v. Gulf Resources and Chemical Corp., 53 F.R.D. 458, 460 (D.Del.1971):

"Motions to strike a defense as legally insufficient are not favored and will not ordinarily be granted unless the insufficiency is `clearly apparent', 1A Barron and Holtzoff, Federal Practice and Procedure, § 368, p. 5016 (1960). Not favored because of their dilatory character and tendency to create piecemeal litigation, motions to strike are often denied even when technically correct and well-founded. Wright and Miller, Federal Practice and Procedure, § 1381 pp. 799-800 (1969); 2A Moore Federal Practice, paragraph 12.212. Thus, absent a showing of prejudice, courts are often reluctant to decide disputed and substantial questions of law. Id. However, defenses which would tend to significantly complicate the litigation are particularly vulnerable to a motion to strike. Id. The Court is of the opinion that the fourth defense would substantially complicate the discovery proceedings and the issues at trial and that the defense is legally insufficient under any facts alleged herein. It, therefore, grants plaintiff's Motion to Strike."

While the traditional "disfavor" of a motion to strike stems from its potential for abuse as a dilatory tactic, this drawback must be balanced against the motion's intended use as "the primary procedure for objecting to an insufficient defense," 5 Wright & Miller, supra at 782. Weeding out legally insufficient defenses at an early stage of a complicated law suit may be extremely valuable to all concerned "in order to avoid the needless expenditures of time and money," in litigating issues which can be foreseen to have no bearing on the outcome. Purex Corp., Ltd. v. General Foods Corp., 318 F.Supp. 322, 323 (C.D.Cal. 1970).

Whether it will ultimately be more time-consuming to test their sufficiency at the pre-trial stage or during the course of trial is naturally governed by the particular circumstances of each case. In a complicated case such as the one at bar, retention of the challenged defenses until trial will inevitably require the parties, who approach 40 in number, to engage in extensive discovery which would in large part be obviated if plaintiff prevails on its motion. In addition, the potential presentation of extraneous issues to a jury at the trial of this case would only result in confusion and unduly lengthened proceedings, since the issues remaining in the case would themselves pose thorny legal and factual questions for judge and jury. Lastly, it can be anticipated that the proof necessary to establish the challenged defenses of estoppel by sale, laches, and statute of limitations/adverse possession will be damaging to the plaintiff by evoking the jury's sympathy for the defendants. If plaintiff is correct that these defenses are legally insufficient to defeat its claim, it would be extremely prejudicial to permit defendants to prove them at trial. The Court therefore concludes that as to these consolidated cases, it is appropriate to seriously consider plaintiff's motion to strike despite the traditional reluctance to do so.

In passing upon a motion to strike, a court must treat as admitted all material factual allegations underlying the challenged defenses and all reasonable inferences which can be drawn therefrom. Kohen v. E. S. Crocker Co., 260 F.2d 790, 792 (5th Cir. 1958); M. L. Lee & Co. v. American Cardboard & Packaging Corp., 36 F.R.D. 27, 29 (E.D.Pa.1964). Viewed in this light, a defense will be stricken only if it "could not possibly prevent recovery" by plaintiff on its claim. United States v. Pennsalt Chemicals Corp., 262 F.Supp. 101 (E.D.Pa.1967); M. L. Lee & Co. v. American Cardboard & P. Corp., supra. This does not mean, however, that the Court must treat other allegations of the answer, which are not challenged, as true. Kohen v. E. S. Crocker Co., supra. Furthermore, unless plaintiff's ability to establish the material allegations underlying its claim is presupposed, we would never be able to reach the issue at hand; our inquiry would continually founder upon plaintiff's failure to establish a prima facie case. Thus, to the extent that the challenged defenses are not factually in conflict with those facts alleged by plaintiff to support its claim for recovery, we must, for purposes of this motion, assume that plaintiff will be able to establish them at trial.


These consolidated cases consist of two actions brought by plaintiff Narragansett Tribe of Indians to establish its right to possession of certain parcels of land which it contends are unlawfully held by the State of Rhode Island (C.A. No. 750005) and a number of private individuals and businesses (C.A. No. 750006). Plaintiff asserts only one ground for its claim of superior title: that each of the defendants traces his title back to an unlawful alienation of tribal land in violation of 25 U.S.C. § 177, popularly known as the Indian Nonintercourse Act ("the Act"). Plaintiff concedes that unless it is able to establish that the Act's terms cover the land in question, it has no right to recovery on any other basis. On the other hand, it contends that if it is able to meet is prima facie burden of establishing the Act's coverage, there are no affirmative defenses which can defeat its claim.

Our first task is to determine the proof necessary for plaintiff to establish a prima facie case. This task has been greatly simplified by the First Circuit's analysis of the Act in Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975), aff'g, 388 F.Supp. 649 (D.Me. 1975) (hereinafter Passamaquoddy), which was decided after the parties submitted their briefs.

In Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (hereinafter Oneida), the United States Supreme Court held that the Oneida Indian Nation had stated a federal cause of action cognizable under 28 U.S.C. § 1331 in claiming a right to possession of certain lands which it alleged had been ceded to the State of New York "without the consent of the United States and hence ineffective to terminate the Indians' right to possession under," inter alia, the Nonintercourse Act. Id. at 664-665, 94 S.Ct. at 776. The Act, 25 U.S.C. § 177, provides as follows:

"No purchase, grant, lease of other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for the title or purchase or any lands by them held or claimed, is liable to a penalty of $1,000. The agent of any State who may be present at any treaty held with Indians under the authority of the United States, in the presence and with the approbation of the commissioner of the United States appointed to hold the same, may, however, propose to, and adjust with, the Indians the compensation to be made for their claim to lands within such State, which shall be extinguished by treaty."

The Act, which has appeared in this form without material change, see part III B, infra, since its original enactment in 1790, embodies the policy of the United States "to acknowledge and guarantee the Indian tribes' right of occupancy, United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 348, 62 S.Ct. 248, 86 L.Ed. 260 (1941)," Passamaquoddy, supra, 528 F.2d at 379, to tribal lands and "to prevent the government's Indian wards from improvidently disposing of their lands and becoming homeless public charges," United States v. Candelaria, 271 U.S. 432, 441, 46 S.Ct. 561, 563, 70 L.Ed. 1023 (1926). See also Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960); Passamaquoddy, supra, 528 F.2d at 377; 388 F.Supp. at 656-657 and cases cited therein.

In order to establish a prima facie case, plaintiff must show that:

1) it is or represents an Indian "tribe" within the meaning of the Act;
2) the parcels of land at issue herein are covered by the Act as

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