Case: Document: 141 Page: 1 11/02/ cv. United States Court of Appeals for the Second Circuit ONONDAGA NATION,

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1 Case: Document: 141 Page: 1 11/02/ cv United States Court of Appeals for the Second Circuit ONONDAGA NATION, Plaintiff-Appellant, v. THE STATE OF NEW YORK, GEORGE PATAKI, In His Individual Capacity and as Governor of New York State, ONONDAGA COUNTY, CITY OF SYRACUSE, HONEYWELL INTERNATIONAL, INC., TRIGEN SYRACUSE ENERGY CORPORATION, CLARK CONCRETE COMPANY, INC., VALLEY REALTY DEVELOPMENT COMPANY, INC., and HANSON AGGREGATES NORTH AMERICA, Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK Case No. 05-cv U.S. District Judge Lawrence E. Kahn PETITION OF APPELLANT FOR REHEARING EN BANC Joseph Heath Law Office of Joseph Heath 512 Jamesville Avenue Syracuse, NY Tel: (315) jheath@atsny.com Lead Counsel for the Onondaga Nation Curtis G. Berkey BERKEY WILLIAMS LLP 2030 Addison Street, Suite 410 Berkeley, CA Tel: (510) cberkey@berkeywilliams.com Counsel for the Onondaga Nation Alexandra C. Page BERKEY WILLIAMS LLP 616 Whittier Street N.W. Washington, D.C Tel: (202) alex.c.page@gmail.com Counsel for the Onondaga Nation

2 Case: Document: 141 Page: 2 11/02/ TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES...ii STATEMENT PURSUANT TO FED. R. APP. P. 35(b)(1)... 1 INTRODUCTION... 2 ARGUMENT... 4 I. En Banc Review is Necessary to Secure Uniformity of This Court s Decisions with Controlling Supreme Court Precedent on Indian Land Claims... 4 II. III. En Banc is Necessary to Make This Court s Decisions Consistent with Congress s Judgment That Indian Nations Should be Allowed to Bring Claims That Their Land was Acquired in Violation of Federal Law... 7 En Banc Review is Necessary to Make This Court s Decisions Consistent With Federal Equity Practice CONCLUSION PROOF OF SERVICE i

3 Case: Document: 141 Page: 3 11/02/ TABLE OF AUTHORITIES Cases Page No. Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 547 U.S (2006)... passim City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005)... passim County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) (Oneida II)... passim Federal Power Comm n v. Tuscarora Indian Nation, 362 U.S. 99 (1960)... 3 Hecht Co. v. Bowles, 321 U.S. 321 (1944) Holmberg v. Armbrecht, 327 U.S. 392 (1946)... 9 Kansas v. Colorado, 514 U.S. 673 (1995) McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995)... 10, 12 Oneida Indian Nation v. County of Oneida, 617 F.3d 114 (2d Cir. 2010), cert. denied, 132 S.Ct. 452 (2011)... passim United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483 (2001)... 8 Watson v. Geren, 587 F.3d 156 (2d Cir. 2009)... 1 ii

4 Case: Document: 141 Page: 4 11/02/ Statutes and Rules 1 Stat. 137, 25 U.S.C. 177, Trade and Intercourse Act of passim 7 Stat. 15, Treaty of Fort Stanwix of Stat. 44, Treaty of Canandaigua of U.S.C. 2415, Indian Claims Limitations Act of , 8, 9 Fed. R. App. P. 35(b)(1)... 1 Other Authorities S. Rep. No (1977)... 9 S. Rep. No (1980)... 9 iii

5 Case: Document: 141 Page: 5 11/02/ STATEMENT PURSUANT TO FED. R. APP. P. 35(b)(1) In a Summary Order, a panel of this Court affirmed the decision of the District Court for the Northern District of New York dismissing the land rights action of the Onondaga Nation. The Nation had sought a declaratory judgment that the State of New York, the City of Syracuse, the County of Onondaga and five corporate landowners hold interests in land in violation of the United States Constitution, the Trade and Intercourse Act of 1790 and several treaties with the Haudenosaunee or Six Nations Confederacy. The Onondaga Nation petitions this Court for rehearing en banc because the Panel Order, and the Circuit precedent on which it relies, conflict with the decisions of the Supreme Court in County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) ( Oneida II ); and City of Sherrill v. Oneida Indian Nation, 544 U.S. 187 (2005) ( City of Sherrill ). Consideration by the full Court is necessary to secure and maintain the uniformity of the court s decisions. Fed. R. App. P. 35(b)(1)(A). Moreover, this case presents an issue of exceptional importance because it raises important systematic consequences for the development of the law related to the application of equitable principles to legal claims. Watson v. Geren, 587 F.3d 156, 158 (2d Cir. 2009). 1

6 Case: Document: 141 Page: 6 11/02/ INTRODUCTION In 1790, President George Washington promised the Haudenosaunee or Six Nations Confederacy, which includes the Onondaga Nation, that the federal courts would be available to protect them from the efforts of the State of New York and others to take their lands unfairly. See Oneida II, 470 U.S. at 237 n.8 (quoting President Washington: No state... can purchase your lands, unless at some public treaty, held under the authority of the United States. The General Government will never consent to your being defrauded, but will protect you in all your just rights. If however, you should have any cause for complaint... the federal courts will be open to you for redress. ). That same year, Congress enacted Washington s promise into law by passing the Trade and Intercourse Act, which prohibited land transactions between Indian nations and the states absent congressional approval. The Act provided in relevant part: [t]hat no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the constitution Stat. 137, now codified at 25 U.S.C The Act was designed to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them to other parties, except the United States, without the consent 2

7 Case: Document: 141 Page: 7 11/02/ of Congress.... Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 119 (1960). The United States also promised to protect the Six Nations in the security of their lands in the Treaty of Canandaigua of 1794, which provided that Onondaga land shall remain theirs until they choose to sell the same to the people of the United States, who have the right to purchase. 7 Stat. 44, Article II. The Onondaga Nation s lawsuit alleges that in the last two decades of the eighteenth century and the early decades of the nineteenth century, New York State acquired all but approximately 6,900 acres of the Nation s ancestral lands in violation of the Trade and Intercourse Act, the Treaty of Canandaigua of 1794 and the Treaty of Fort Stanwix of The Panel Order held that an equitable bar related to the disruptive nature of the claims required dismissal of the Onondagas claim, relying on this Court s decisions in Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 547 U.S (2006) ( Cayuga ), and Oneida Indian Nation v. County of Oneida, 617 F.3d 114 (2010), cert. denied, 132 S.Ct. 452 (2011) ( Oneida ). The full Court should reconsider the Panel Order because it relied on prior rulings in Indian land claim cases that were wrongly decided. Cayuga and Oneida were incorrectly decided because: 1) they conflict with the controlling decisions of the Supreme Court in Oneida II and City of Sherrill; 2) they nullify the judgment of Congress in the Indian Claims Limitation Act of 1982 that 3

8 Case: Document: 141 Page: 8 11/02/ contemporary assertions of Indian land claims based on historic violations of federal law are timely and that the federal courts should be open to hear them; and 3) they substantially depart from federal equity practice and Supreme Court precedent that require balancing the equities and hardships among the litigants before determining that the entire claim is barred on equitable grounds. Because rehearing is necessary to ensure uniformity of the law related to Indian land claims, and because this case presents a question of exceptional importance related to the development of the law of equity in the Indian land claim context, en banc review should be granted. ARGUMENT I. En Banc Review is Necessary to Secure Uniformity of This Court s Decisions with Controlling Supreme Court Precedent on Indian Land Claims. The Panel dismissed the Onondaga Nation s suit on the basis of Cayuga and Oneida. The Panel purported to distill three equitable factors from these decisions to foreclose the Onondagas claims: 1) the length of time between the historical injustice (loss of Onondaga land at the hands of New York State) and the assertion of the claim; 2) the disruptive nature of the claims long delayed ; and 3) the degree to which the claims upset justifiable expectations of individuals and entities far removed from the events giving rise to the plaintiff s injury. Summary Order at 3. Although the Onondagas limited the relief sought to a 4

9 Case: Document: 141 Page: 9 11/02/ declaratory judgment and did not seek ejectment or any other coercive relief against any defendant or landowner, the Panel ruled that the claim is barred regardless of the form of remedy. Cayuga, Oneida and the Panel s Order conflict with the Supreme Court s ruling in Oneida II. In that case, the Supreme Court ruled that, notwithstanding the long passage of time between the historic wrong and the filing of the suit, Indian nations have a common law right of action for redress for the dispossession of their lands in violation of the Trade and Intercourse Act. 470 U.S. at 235. The Court emphasized that the passage of time did not bar the claims: One would have thought that claims dating back more than a century and a half would have been barred long ago. As our opinion indicates, however, neither petitioners nor we have found any applicable statute of limitations or other relevant legal basis for holding that the Oneidas claims are barred or otherwise have been satisfied. 470 U.S. at 253. The Court further held that although equitable considerations might affect the nature of the relief available to the Oneidas, such considerations did not bar the claims altogether. Id. at 253 n.27. Although the Court was not required to rule on the availability of laches as a bar to the claims, it nonetheless noted that the application of laches would appear to be inconsistent with established federal policy and the Court s precedents. Id. at 244 n

10 Case: Document: 141 Page: 10 11/02/ The Panel s reliance on disruptiveness as an equitable ground to preclude the Onondagas claims is likewise inconsistent with the Supreme Court s ruling in Oneida II. In that case, the Supreme Court affirmed a judgment that the 1795 purchase of 100,000 acres of Oneida land by the State of New York violated the Trade and Intercourse Act and was therefore invalid. In upholding the judgment, the Court was not deterred by the fact that the expectations of landowners in the Oneida claim area might have been disrupted. As Justice Stevens noted in dissent, the Court s decision upsets long-settled expectations in the ownership of real property. 470 U.S. at 273. The Court nonetheless determined that the Oneidas should be able to maintain a cause of action for violations of the Act that arose 175 years earlier. Finally, Cayuga, Oneida, and the Panel s Order conflict with the Supreme Court s decision in City of Sherrill. In that case, the Supreme Court ruled that because of the long lapse of time during which the Oneidas had not asserted sovereign control over land recently purchased, they could not seek an injunction precluding the City from taxing those parcels. 544 U.S. at Although the Court suggested that under certain circumstances the passage of time could bar certain forms of relief, it did not modify the central holding of Oneida II that the passage of time did not bar the Oneidas claim to the land. Instead, City of Sherrill expressly preserved Oneida II: the question of damages for the 6

11 Case: Document: 141 Page: 11 11/02/ Tribe s ancient dispossession is not at issue in this case, and we therefore do not disturb our holding in Oneida II. 544 U.S. at 221. Equally significant, the Court in City of Sherrill limited its ruling on the application of equitable considerations to remedies, clarifying that claims were to be treated differently. The Court explained that the substantive questions of whether the plaintiff has a right are very different from the issue of the kind of remedy available to vindicate that right. 544 U.S. at 213. Nothing in City of Sherrill suggests that the equitable considerations identified there should automatically be applied to preclude Indian land rights actions entirely, and especially not suits based on the Trade and Intercourse Act. The Court rejected the extraordinary relief requested rekindling embers of sovereignty that long ago grew cold not the Oneidas underlying claim that the Trade and Intercourse Act had been violated. Thus, the Panel s ruling here, based on Cayuga and Oneida, that the Onondaga Nation s claims are precluded ab initio, regardless of the particular remedy sought, cannot be squared with the Supreme Court s dispositive distinction between claims and remedies. II. En Banc Review is Necessary to Make This Court s Decisions Consistent with Congress s Judgment That Indian Nations Should be Allowed to Bring Claims That Their Land was Acquired in Violation of Federal Law. The Panel Opinion invoked equitable principles drawn from Cayuga and Oneida to bar the Onondagas claim. It is a fundamental principle of equity 7

12 Case: Document: 141 Page: 12 11/02/ jurisprudence, however, that equitable principles should not be applied to displace the judgment of Congress about the appropriate length of time within which a claim may be asserted. See, e.g., United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483, 491 n.4 (2001) ( [c]ourts of equity cannot, in their discretion, reject the balance that Congress has struck in favor of their own.). Congress has carefully and thoroughly considered the societal interests and expectations implicated by Indian land rights actions under the Trade and Intercourse Act and determined that assertions of such suits today should not be subject to equitable time bars. The illegal takings of Indian lands are an historic injustice for which the courts should provide a remedy. As the Supreme Court explained in Oneida II, Congress has enacted no federal statute of limitations governing federal common-law actions by Indians to enforce property rights. 470 U.S. at 250. Instead, Congress has made clear in the Indian Claims Limitations Act of 1982 that no limitations period should bar Indian land claims under the Trade and Intercourse Act. Although the 1982 Act imposed a statute of limitations on certain tort and contract claims for damages brought by Indian nations, that limitations period expressly did not apply to claims made to establish title to, or the right to possession of, real or personal property. 28 U.S.C. 2415(c). Thus, Congress has intended that land claim actions such as the Onondagas should not be subject 8

13 Case: Document: 141 Page: 13 11/02/ to any limitations period. The 1982 Act presumes the existence of an Indian right of action not otherwise subject to any statute of limitations. Oneida II, 470 U.S. at 244. In developing this federal policy, Congress was fully aware that many of the Indian claims that could be brought were based on violations of the Trade and Intercourse Act that occurred two centuries ago, and that the expectations of non- Indian landowners regarding their titles could be disrupted. See., e.g., S. Rep. No , at 2 (1977) ( Many of these claims go back to the 18 th and 19 th centuries. ); S. Rep. No , at 9 (1980) ( This Committee is well aware of the magnitude of the eastern [Indian] land claims and the effect such claims are having in the jurisdiction where they may be litigated. ). Having been informed of the nature and scope of Indian claims under the Trade and Intercourse Act, Congress nonetheless determined that such claims should not be subject to any time bar. By applying an equitable bar to actions Congress has determined should be allowed to be maintained, the Panel impermissibly nullified Congress s judgment. For purposes of a limitations period, the policy adopted by Congress is definitive and the end of the matter. Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946). Consideration by the full Court is necessary to bring this Court s decisions into uniformity with Supreme Court precedent and Congress s judgment. 9

14 Case: Document: 141 Page: 14 11/02/ III. En Banc Review is Necessary to Make This Court s Decisions Consistent With Federal Equity Practice. By relying on Cayuga and Oneida, the Panel substantially departed from established federal equity practice. Equitable principles have long been part of the fabric of federal Indian law. Those principles require courts to take into account the disruption and hardship experienced by the Onondaga Nation as a result of New York s unlawful acquisition of its lands. Equity also requires consideration of the historic and ongoing efforts of the Nation to seek redress. Further, federal equity practice recognizes the unclean hands doctrine, which denies equitable relief to a party that has engaged in reprehensible conduct. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 360 (1995). In City of Sherrill, the Supreme Court based its decision on standards of federal Indian law and federal equity practice. 544 U.S. at 214. Under the general principles of equity which City of Sherrill espoused, the equitable circumstances of both parties should be considered and weighed. The essence of equity jurisdiction has been the power of the [court] to do equity and to mould each decree to the necessities of the particular case. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). In that case, the Supreme Court explained that traditional equity practice consists of [f]lexibility rather than rigidity and includes qualities of mercy and practicality. Id. Moreover, the equitable doctrine of 10

15 Case: Document: 141 Page: 15 11/02/ laches, as established by the Supreme Court, requires proof of lack of diligence by the party against whom the doctrine is asserted and prejudice to the party asserting the defense. Kansas v. Colorado, 514 U.S. 673, 687 (1995). In departing from these principles, the Panel was blind to the equities favoring the Onondaga Nation. These equities arose from the hardship caused by the loss of its lands and from the fact that the Onondaga Nation diligently pursued every available opportunity to seek the return of their lands throughout the two hundred years since the State took them in violation of the Trade and Intercourse Act. Contrary to established federal principles, the Panel s application of equity was rigid and one-sided, rather than flexible and balanced. The loss of Onondaga Nation land has deprived them of traditional hunting, fishing and gathering sites and nearly foreclosed these traditional practices. Access to important cultural, burial and ceremonial sites has been denied for generations. The lands of the Onondaga Nation have been polluted and degraded, which the Nation has largely been powerless to stop because others control those lands. And the Nation has diligently, though so far unsuccessfully, pursued redress. Federal equity practice requires these considerations to be taken into account. Finally, the historical record contains indisputable evidence that the State of New York comes to this Court with unclean hands. The State deceived the 11

16 Case: Document: 141 Page: 16 11/02/ Onondagas about the nature of transactions to purchase their land, leading them to believe that they were leasing rather than selling their lands. Declaration of Professor J. David Lehman at (Joint Appendix ). The State also knew that it was dealing with individuals who had no authority from the Onondaga Nation to negotiate about land. Id. The State also knew that it was violating federal law by negotiating land transactions with the Onondagas in the absence of congressional authorization. Oneida II, 470 U.S. at 232 (noting Secretary of War Pickering s warnings to New York Governors Clinton and Jay that federal law required prior authorization to make land deals with Indian nations). The bargain struck by the State was grossly unfair to the Onondagas, who were paid about $33,000 for all of the thousands of acres lost between 1788 and Declaration of Professor J. David Lehman at 4 (Joint Appendix 190). Equity s maxim [is] that a suitor who engaged in his own reprehensible conduct in the course of the transaction at issue must be denied equitable relief because of unclean hands.... McKennon v. Nashville Banner Pub. Co., 513 U.S. at 360. The Panel s failure, pursuant to Cayuga and Oneida, to consider the countervailing equities of the Onondaga Nation and the unclean hands of the State of New York is inconsistent with federal equity doctrine. En banc review is necessary to address a question of exceptional importance regarding whether and to what extent this Court may contravene established federal equity principles. 12

17 Case: Document: 141 Page: 17 11/02/ granted. CONCLUSION For the foregoing reasons, the Petition for En Banc review should be Dated: November 2, 2012 Respectfully submitted, /s/joseph J. Heath Joseph J. Heath Law Office of Joseph Heath Admission Date: 02/19/1999, last renewed on 11/16/ Jamesville Avenue Syracuse, NY Tel: (315) /s/curtis G. Berkey Curtis G. Berkey Admission Date: 04/27/1984, last renewed on 08/16/2010 BERKEY WILLIAMS LLP 2030 Addison Street, Suite 410 Berkeley, CA Tel: (510) /s/alexandra C. Page Alexandra C. Page Admission Date: 09/23/03, last renewed on 08/10/2010 BERKEY WILLIAMS LLP 616 Whittier Street N.W. Washington, D.C Tel: (202) Counsel for Appellant the Onondaga Nation 13

18 Case: Document: 141 Page: 18 11/02/ PROOF OF SERVICE I hereby certify that on November 2, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. /s/joseph J. Heath Joseph J. Heath Law Office of Joseph Heath Admission Date: 02/19/1999, last renewed on 11/16/ Jamesville Avenue Syracuse, NY Tel: (315) jheath@atsny.com

United States Court of Appeals for the Second Circuit ONONDAGA NATION, Plaintiff-Appellant,

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