Case: Document: 40-1 Page: 1 11/15/ IN THE FOR THE SECOND CIRCUIT >> (Additional Caption On the Reverse)

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1 Case: Document: 40-1 Page: 1 11/15/ CV IN THE United States Court of Appeals FOR THE SECOND CIRCUIT >> STOCKBRIDGE-MUNSEE COMMUNITY, v. >> Plaintiff-Counter-Defendant-Appellant, 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) On Appeal from the United States District Court for the Northern District of New York (Albany) BRIEF FOR PLAINTIFF-COUNTER- DEFENDANT-APPELLANT STOCKBRIDGE-MUNSEE COMMUNITY WITH SPECIAL APPENDIX Don B. Miller DON B. MILLER, P.C Cedar Avenue Boulder, Colorado and Justin E. Driscoll, III BROWN & WEINRAUB, PLLC 233 Broadway New York, New York Attorneys for Plaintiff- Counter-Defendant-Appellant Stockbridge-Munsee Community

2 Case: Document: 40-1 Page: 2 11/15/ 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, and Defendants-Counter-Claimants-Appellees, ONEIDA INDIAN NATION OF NEW YORK, Defendant-Intervernor-Appellee.

3 Case: Document: 40-1 Page: 3 11/15/ TABLE OF CONTENTS TABLE OF AUTHORITIES... iii JURISDICTIONAL STATEMENT... 1 STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS Historical Background The Proceedings Below... 8 SUMMARY OF THE ARGUMENT ARGUMENT Standard of Review I. The District Court Erred in Dismissing Stockbridge s Claims Against Intervenor-Defendant Oneida Indian Nation on the Ground of Tribal Sovereign Immunity II. III. The Sherrill Equitable Defense Does Not Bar Stockbridge s Claims against the Nation The District Court Erred in Applying the Sherrill Defense to Bar the Tribe s Claims Against the County and Municipal Defendants 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

4 Case: Document: 40-1 Page: 4 11/15/ 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 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 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 CONCLUSION ii

5 Case: Document: 40-1 Page: 5 11/15/ CASES: TABLE OF AUTHORITIES Agostini v. Felton, 521 U.S. 203 (1997) Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005) 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) Catawba Indian Tribe v. South Carolina, 865 F.2d 1444 (4 th Cir. 1989) 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) 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) Ewert v. Bluejacket, 259 U.S. 129 (1922) 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) Ford v. Reynolds, 316 F.3d 351 (2003) Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, (1999) Hecht Co. v. Bowles, 321 U.S. 321(1944) iii

6 Case: Document: 40-1 Page: 6 11/15/ 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) James v. Watt, 716 F.2d 71 (1 st Cir. 1983) Jicarilla Apache Tribe v. Hodel, 821 F.2d 537 (10 th Cir. 1987) 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) LeBeau v. United States, 115 F.Supp.2d 1172 (S.D.S.D. 2000) MasterCard Intern. Inc. v. Visa Intern. Services Ass n, Inc., 471 F.3d 377 (2d Cir. 2006) Miami Tribe of Oklahoma v. Walden, 206 F.R.D. 238 (S.D. Ill. 2001) National City Bank of N.Y. v. Republic of China, 348 U.S. 356 (1955) New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492 (3d Cir. 1996) New York v. White, 528 F.2d 336 (2d Cir. 1975) Oneida Indian Nation v. County of Oneida, 464 F.2d 916 (2d Cir. 1972) Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) Oneida Indian Nation v. County of Oneida, 719 F.2d 525 (2d Cir. 1983) Oneida Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114 (2d Cir. 2010)...passim iv

7 Case: Document: 40-1 Page: 7 11/15/ Oneida Indian Nation v. County of Oneida, 199 F.R.D. 61 (N.D.N.Y. 2000) Oneida Indian Nation of New York v. State of New York, 860 F.2d 1145 (2d Cir. 1988) Oneida Indian Tribe of Indians of Wisconsin v. AGB Properties, 2002 WL (N.D.N.Y. 2002) Onondaga Nation v. New York, 500 F. Appx. 87 (2d Cir. 2012)... 2,25 Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9 th Cir.1994) Republic of the Philippines v. Pimental, 553 U.S. 851, 867 (2008) Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) 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) Seneca Nation of Indians v. New York, 206 F.Supp.2d 448 (W.D.N.Y. 2002) Six Nations, et al. v. United States, 32 Ind. Cl. Comm. 440 (1973)... 7 Smith v. Reagan, 841 F.2d 28 (2d Cir. 1988) State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158 (2d Cir. 2004) Stockbridge-Munsee Cmty. v. State, 2013 U.S. Dist. LEXIS ; 2013 WL (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 v

8 Case: Document: 40-1 Page: 8 11/15/ United States v. Brennan, 650 F.3d 65 (2d Cir. 2011) United States v. Gomez, 580 F.3d 94 (2d Cir. 2009) United States v. Lee, 106 U.S. 196 (1882)... 44,49,50 United States v. Mack, 295 U.S. 480 (1935) United States v. Martinez, 413 F.3d 239(2d Cir. 2005) 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 (9 th Cir. 1981)... 20,24 Verizon Maryland, Inc. V. Public Serv. Com n of Maryland, 535 U.S. 635 (2002) Weinberger v. Romero-Barcelo, 456 U.S. 305 (1988) 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) TREATIES 1788 Treaty of Fort Schuyler... 1,2,5 AGREEMENT WITH THE FIVE NATIONS OF INDIANS, Article of April 23, Treaty of Canandaigua, 7 Stat ,2,6,7 vi

9 Case: Document: 40-1 Page: 9 11/15/ STATUTES and REGULATIONS Trade and Intercourse Act 25 U.S.C ,36 Indian Reorganization Act 25 U.S.C Quiet Title Act, 28 U.S.C. 2409a... 41,42 Indian Claims Limitation Act of 1982, Pub. L. No , 96 Stat U.S.C U.S.C U.S.C U.S.C U.S.C U.S.C C.F.R. Part C.F.R. Part 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, 29 th Cong., 1 st Sess. 29 (1846)... 7 S. Rep. No. 1253, 92d Cong., 2d Sess. (1972) vii

10 Case: Document: 40-1 Page: 10 11/15/ H. R. Rep. No. 375, 95 th Cong., 1 st Sess. (1977) H. R. Rep. No. 807, 96 th Cong., 2d Sess. (1980) S. Rep. No. 569, 96 th Cong., 2d Sess. (1980) Cong. Rec. 22 (1977) 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) D. Dobbs, 1 LAW OF REMEDIES 91 (2d. ed. 1993) Dobbs, LAW OF REMEDIES 1.2 (1973) Matthew L. M. Fletcher, The Comparative Rights of Indispensable Sovereigns, 40 Gonz. L. Rev. 1 ( ) Kathryn Fort, Disruption and Impossibility: the New Laches and the Unfortunate Resolution of the Modern Iroquois Land Claims, 11 Wyo. L. Rev. 375 (2011) 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 & ,5 The Supreme Court, 1996 Term Leading Cases, Ex parte Young Doctrine, 111 Harv. L. Rev. 269 (1997) Wm. A. Starna, From Homeland to New Land: A History of the Mahican Indians, , University of Nebraska Press (2013)... 4 viii

11 Case: Document: 40-1 Page: 11 11/15/ 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 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, A437. The Court of Appeals has jurisdiction over this Appeal under 28 U.S.C 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

12 Case: Document: 40-1 Page: 12 11/15/ 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, (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, 2

13 Case: Document: 40-1 Page: 13 11/15/ 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 postintervention 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 ; 2013 WL (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

14 Case: Document: 40-1 Page: 14 11/15/ 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 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, 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, A 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, A See Wm. A. Starna, From Homeland to New Land: A History of the Mahican Indians, , , University of Nebraska Press (2013). 4

15 Case: Document: 40-1 Page: 15 11/15/ 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 5

16 Case: Document: 40-1 Page: 16 11/15/ disposition of lands, belonging to the people of this State], Laws of the State of New York, Vol. III, Chap. 32, (Albany, 1877), A341; Starna 3 and 8-10, A278, 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 In the 1794 Treaty of Canandaigua, 7 Stat. 44, the United States renewed and expanded its obligations to Stockbridge undertaken in 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 6

17 Case: Document: 40-1 Page: 17 11/15/ 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, (1971), A See Starna 5-6 and 10-12, A and A 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. A 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, 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, 29 th 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. 7

18 Case: Document: 40-1 Page: 18 11/15/ 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 , A 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. A 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-milesquare 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, A The County and Municipal defendants 8

19 Case: Document: 40-1 Page: 19 11/15/ 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 ( ), 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 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

20 Case: Document: 40-1 Page: 20 11/15/ 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 See Dkt.Nos.237 & 241. The required state and federal implementing legislation could not be achieved and the settlement failed in 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 10

21 Case: Document: 40-1 Page: 21 11/15/ 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 11

22 Case: Document: 40-1 Page: 22 11/15/ 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 19 th century transactions by which New York originally acquired possession. Stockbridge and OIN agree that Indian title to New Stockbridge was not extinguished by the 19 th 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 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. 12

23 Case: Document: 40-1 Page: 23 11/15/ 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 19 th 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 13

24 Case: Document: 40-1 Page: 24 11/15/ 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 treatyguaranteed 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 14

25 Case: Document: 40-1 Page: 25 11/15/ basis upon which to distinguish the rule s applicability in the statutory-waiver context from its applicability in the context of an Ex Parte Young action the interest in preventing the risk of manipulation of jurisdiction is the same in both contexts. Rather than dismiss, the District Court should have joined the current possessor of the parcel. The Ex Parte Young doctrine therefore applies to avoid the Eleventh Amendment bar because the only sovereign interest in possessing the.91-acre tract of abandoned farm land belongs to Stockbridge. Stockbridge alleges an ongoing violation of federal law and seeks only prospective relief. It asserts only an ejectment claim for future possession against State officers and does not challenge the State s title or assert claims against the State itself. Nor does Stockbridge assert regulatory jurisdiction over this land. Therefore, no unique state sovereign interest is implicated. Where no special state sovereignty interests are involved, the Eleventh Amendment does not prevent a federal court from providing relief from governmental officials taking illegal possession of property in violation of federal law. ARGUMENT Standard of Review This Circuit review[s] a District Court's decision to grant a motion to dismiss for failure to state a claim upon which relief can be granted de novo, taking 15

26 Case: Document: 40-1 Page: 26 11/15/ 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 16

27 Case: Document: 40-1 Page: 27 11/15/ 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 [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 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. ( ), A76. 6 Motion to Intervene at 1-2, A (Proposed) Order at 1, A67. 17

28 Case: Document: 40-1 Page: 28 11/15/ 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 ( ), A74. 9 Affidavit of Paul Miller, , A422; table, OIN Purchases within Stockbridge Treaty Area, A AC, A Jicarilla Apache Tribe v. Hodel, 821 F.2d 537, 539 (10 th Cir. 1987). 12 S.E.C. v. Credit Bancorp, Ltd., 297 F.3d 127, 136 (2d Cir. 2002). 18

29 Case: Document: 40-1 Page: 29 11/15/ rights, OIN asserted its own ownership and possessory rights: In the late 18 th 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 Mem. at 11, A137 (quoting McClendon v. United States, 885 F.2d 627, 630 (9 th Cir. 1989)). 19

30 Case: Document: 40-1 Page: 30 11/15/ 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 (9 th Cir. 1981))). 20

31 Case: Document: 40-1 Page: 31 11/15/ 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. 21

32 Case: Document: 40-1 Page: 32 11/15/ 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 See MasterCard Intern. Inc. v. Visa Intern. Services Ass n, Inc., 471 F.3d 377, (2d Cir. 2006). 18 See OIN s Mem. in Opp. ( ), A76. 22

33 Case: Document: 40-1 Page: 33 11/15/ 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 ( ) ( 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 at *14 (N.D.N.Y. 2002)(Dkt.No.288,Att.#5,Ex.CC). 23

34 Case: Document: 40-1 Page: 34 11/15/ 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 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). 24

35 Case: Document: 40-1 Page: 35 11/15/ 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. 25

36 Case: Document: 40-1 Page: 36 11/15/ 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-lawbased 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 19 th 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). 26

37 Case: Document: 40-1 Page: 37 11/15/ not extinguished by the 19 th 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 statelaw-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 See OIN s memorandum in support of motion to dismiss First Amended Complaint at 9, A135, [Stockbridge fails to state viable federalcommon-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). 27

38 Case: Document: 40-1 Page: 38 11/15/ 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 See Stockbridge s memorandum in opposition to OIN s motion to dismiss amended complaint at 2-3, A OIN s memorandum at 5, A OIN s purchases within the claim area began on September 1, 1998 and ended on December 15, Stockbridge amended its complaint to seek relief against OIN 28

39 Case: Document: 40-1 Page: 39 11/15/ 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 landclaim 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. A 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 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 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. 29

40 Case: Document: 40-1 Page: 40 11/15/ 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 19 th 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 See James v. Watt, 716 F.2d 71, 74 (1 st 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, (4 th 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, 30

41 Case: Document: 40-1 Page: 41 11/15/ 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 landclaim 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 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

42 Case: Document: 40-1 Page: 42 11/15/ (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). 32

43 Case: Document: 40-1 Page: 43 11/15/ 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 & (different standards applicable to on- and off-reservation secretarial trust acquisitions under 25 U.S.C. 465); 28 U.S.C & 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. 33

44 Case: Document: 40-1 Page: 44 11/15/ (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 Indianlaw 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

45 Case: Document: 40-1 Page: 45 11/15/ 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 nonintervenor 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). 35

46 Case: Document: 40-1 Page: 46 11/15/ 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 , 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 36

47 Case: Document: 40-1 Page: 47 11/15/ 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, 95 th Cong., 1 st Sess. 2-4, 6-7 (1977); H. R. Rep. No. 807, 96 th Cong., 2d Sess. 9 (1980); S. Rep. No. 569, 96 th 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 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 37

48 Case: Document: 40-1 Page: 48 11/15/ 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. 38

49 Case: Document: 40-1 Page: 49 11/15/ 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). 39

50 Case: Document: 40-1 Page: 50 11/15/ 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). 40

51 Case: Document: 40-1 Page: 51 11/15/ 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 , 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 41

52 Case: Document: 40-1 Page: 52 11/15/ 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 longstanding 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, A

53 Case: Document: 40-1 Page: 53 11/15/ 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 43

54 Case: Document: 40-1 Page: 54 11/15/ 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. 44

55 Case: Document: 40-1 Page: 55 11/15/ 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. 45

56 Case: Document: 40-1 Page: 56 11/15/ invoke the fiction of an officers suit under the Ex parte Young doctrine 46 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, (1908). 47 The District Court construed Stockbridge s references to individual capacities as references to official capacity. Slip Op. 4, n.4, SPA4. 46

57 Case: Document: 40-1 Page: 57 11/15/ 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, 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 47

58 Case: Document: 40-1 Page: 58 11/15/ 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 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

59 Case: Document: 40-1 Page: 59 11/15/ 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 49

60 Case: Document: 40-1 Page: 60 11/15/ ejecting State officers from the subject land. See Lee, supra, 106 U.S. at 222; Tindal, supra, 167 U.S. at 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). 50

61 Case: Document: 40-1 Page: 61 11/15/ 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 51

62 Case: Document: 40-1 Page: 62 11/15/ 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. 52

63 Case: Document: 40-1 Page: 63 11/15/ 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 Boulder, CO (212) (303) jdriscoll@brownweinraub.com dbmiller01@msn.com Attorneys for Plaintiff-Appellant Stockbridge-Munsee Community 53

64 Case: Document: 40-1 Page: 64 11/15/ Federal Rules of Appellate Procedure Form 6. Certificate of Compliance With Rule 32(a) c t p li 3 e 13,768 ie m y or i, u r e [state the number of] h p r r Microsoft Office Word 2007 or Times New Roman, 14 Point Font s e ty state name and version of word processing program state number of characters per inch and name of type style Don B. Miller Plaintiff-Appellant Stockbridge-Munsee Community November 14, 2013

65 Case: Document: 40-1 Page: 65 11/15/ SPECIAL APPENDIX

66 Case: Document: 40-1 Page: 66 11/15/ Table of Contents Page Memorandum Decision and Order of the Honorable Lawrence E. Kahn, dated July 23, Judgment of the United States District Court, Northern District of New York, entered July 23, 2013, Appealed From... 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, Decision and Order of the Honorable Gustave J. Di Bianco, dated October 16, SPA1 SPA10 SPA11 SPA17

67 Case: Document: 40-1 Page: 67 11/15/ SPA1 Case 3:86-cv-Ol140-LEIK-DEP Document 302 Filed 07/23113 Paqe 1 of 9 UNITED STATES DISTRICT COlJRT NORTHERN DISTRICT OF NEW YORK STOCKB RlDGE-MUNS EE COMMUNITY, 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, 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, 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,

68 Case: Document: 40-1 Page: 68 11/15/ SPA2 Case 3:86-cv-Ol140-LEIK-DEP Document 302 Filed 07/23113 Paqe 2 of 9 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 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's Amended 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 of Transportation are therefore dismissed. 3 Citations to Plaintiff's Response to the Oneida Motion use the document's internal page numbers and not the numbers electronically affixed to the top of the document. 2

69 Case: Document: 40-1 Page: 69 11/15/ SPA3 Case 3:86-cv-Ol140-LEIK-DEP Document 302 Filed 07/23113 Paqe 3 of 9 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 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

70 Case: Document: 40-1 Page: 70 11/15/ SPA4 Case 3:86-cv-Ol140-LEIK-DEP Document 302 Filed 07/23113 Paqe 4 of 9 612, 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 as between "official capacity" in the context of an Ex Parte Young suit for prospective equitable relief and "personal capacity' in the context ofa suit for damages. Compare, e.g., Papasan v. Allain, 478 U.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. at 171 ("[T]he Court's Eleventh Amendment decisions required this case [under 42 U.S.C. 1988] to be 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]."), and Murrav, 585 F. Supp. 2d at 472 ('''[T]he requirement for suing state officials in their individual capacities [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 in original) (internal quotation marks omitted))), and id. ("A plaintiff may avoid! the Eleventh A mendment bar to suit and proceed against ind ividual state officers, as opposed to the state, in their official 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.3d at 618) (internal quotation marks omitted)). Because Plaintiff "seeks only to pursue an ejectment claim for future possession of land against State officers in their individual capacities" on the theory of Ex Parte Young, the Court construes Plaintiff's references to "individual capacity" as references to "official capacity." Resp. to Gov't Mots. at 2. The distinction is important because "[i]n an official-capacity action in federal court, death or replacement of the named official will result in automatic substitution of the official's successor in office." Graham, 473 U.S. at 166 n.11 (citing FED. R. CIV. P. 2S(d)(I); FED. R. ApP. P. 43(c)(1); SUP. CT. R.40.3). 4

71 Case: Document: 40-1 Page: 71 11/15/ SPA5 Case 3:86-cv-Ol140-LEIK-DEP Document 302 Filed 07/23113 Paqe 5 of 9 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 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 is filed, but the Court is aware of no authority applying that principle in the context of an Ex Parte Young 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 diversity jurisdiction can be destroyed subsequent to filing and that "[sjubscction (e) of the Quiet Title Act 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."). For the reasons stated supra, the Court concludes that the circumstances of this case compel a finding that sovereign immunity bars Plaintiffs claim 5

72 Case: Document: 40-1 Page: 72 11/15/ SPA6 Case 3:86-cv-Ol140-LEIK-DEP Document 302 Filed 07/23113 Paqe 6 of 9 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, 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 legal remedy, 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 prospective injunctive relief in the complaint, Ex Parte Young has no application to this case."). 6

73 Case: Document: 40-1 Page: 73 11/15/ SPA7 Case 3:86-cv-Ol140-LEIK-DEP Document 302 Filed 07/23113 Paqe 7 of 9 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 See Resp. to Oneidas' Mot. at 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, (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 ti me 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

74 Case: Document: 40-1 Page: 74 11/15/ SPA8 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 against all non-intervenor Defendants; however, Plaintiffretracted its claims against the State of New York and the New York State Department of Transportation as erroneously pleaded, see supra note 2 and accompanying text, and the COUlt has determined that it does not have jurisdiction over Plaintiff's clai 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 the Court 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 land in the contested area in the late 1990s and early 2000s, but tj16 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. 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 by their nature disruptive and..., accordingly, the equitable defenses recognized in Sherrill apply to such claims." (internal quotation marks omittcd)). 8

75 Case: Document: 40-1 Page: 75 11/15/ SPA9 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 a 11parti es.. IT.lS SO ORDERED. Dated: July 23, 2013 Albany, NY Lawre u.s. District Judge 9

76 Case: Document: 40-1 Page: 76 11/15/ SPA10 Case 3:86-cv 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-MUNSEE COMMUNITY, -against- Plaintiff, 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 and the jury has rendered its verdict. xx DECISION by COURT. This action came to trial or hearing before the Court. The issues have been tried and 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 favor ofthe Defendants as against the Plaintiff, In accordance with the and MEMORANDUM-DECISION and ORDER ofthe Honorable Lawrence E. Kahn, U. S. District Judge, dated July 23, DATE: July 23, 2013 LAWRENCE K. BAERMAN CLERK OF THE COURT ~- Courtroom Deputy to the Honorable Lawrence E. Kahn

77 Case: Document: 40-1 Page: 77 11/15/ SPA11 ARLINDA F. LOCKLEAR P,O D. 2 4_~ KNOXVillE, MARYLAND 2 17 ~H TeJeph o... eon ln Cl erk of Co ur t Northe r n Distr ic t of Nc ~ Yo r k U.$. Fe de r a l Buildi ng & Court h o u s e 1 5 He nry S t ree t Bi n gha ~ t on, N c~ York 1 39 ~ 1.Ju n e I), 199~ Rc : St.ock b r i d q c -ff unsce 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 uee r t:adam/ Sir : Pl e as e fin d fo r fil ing i n t hc above cap t ioned c e s e till' e nclosed 11o t ion f o r Lp ave t o Apppa r as An ic i C u r i ae, Af f idav i t or Counsel, Orde r, a nd r 1e ~o r and u Q i n Op position to Defend a nts ' flc t ion fo r Judgme nt o n the Plearlings or Surnma r y Judg me n t. Ami c i co not r e q u e s t o ra l a r g unen t on t h e ir mot ion i or leave to appear. Th e p a rt i es i n the a b o v e capti o ne d case ha ve bee n s erv e d on th is date with a cop y o f t h e e nclosed. Si nce re l y, ~Ll ;2~e- Arl inda F. Loc klea r RECEIVED JUN N.A.R.F. WASHINGTON

78 s t kb r I rtqe, ~ 5. T he< p e s e ncc o no u a ns r v r of s a r- a - L r orr i : lay or comp Lt c a c c Case: Document: 40-1 Page: 78 11/15/ SPA12 UfJITED S TA 7 f~ OI ~ 1 'RI C1 ' COUR1' N ORTHF.P~ Or STR ICT OF Il EIJ YOR K ) THF ZTOC KBR IOGE- Htl NS E E HiD IMl COll!\uNITY, 1 al s o k noll n a s ttje S TOC KARIDCE-t1U NS EE BA ND ) OF f10ili CA(J ItlO TAtJ $, 1 1 Plaint i ff. ) 1 v. I I THE 3 T.~T::: OF tl E\ l YO RK,. ~t ill., 1 1 n c Lo nua r.ts, Ci v il Action No, ~fi -C V - l! 4r; (JI : ~lg( ' n c Avo y) not i or, [ 0 r Le-er vc> t o e p p r-a [ as An i c I c ur t ec Co me No\,,; the o nei de ~ n ~ji ilr: T r ibe of \1i!-COII S i n a no t ne o nr- f n a of t h e Tt: a c cs Bano ant: ~ov c ~ t hi s (O llrt fo r l e a v e t o a p poar as 3mi ci cu 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 n the 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 and Ll I C One id a o f I-:I l ' 'r banc s Ba n d s t a t c : 1. ProposPfl a n ic i have c ontinuousl~ and st ill d o of p l a i n t i Lf h o r o i n :; t o c k ~ d d g e -M u l l scc Lnd i e u oc I,'IS(, C 0 11 t hc - t re to plaintit f ~ n J7 21', ~upport th0 claim Co mr-c n i t y r o NI' '.,; t nc n ne i da Iill i o n /. T h e< raoe n tnq <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-i i s the 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«: bjo am ici in o t ho r litigation, 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 Ll r 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 ceu o s, 3. Stio ui d the ~e [ i!flda nts S U C C ~~ i n t h e ir Llot icn he r(', i t coui,j r e s ul t i n th e ad0 i t io ;l of rl~~ 3nd conten t iolls issues l o t I, e p~ ndin~ one I de Larul c l e i rt Ci,S P :i a n.! thel <2 b y corap! i c e t e t h e t 1 i t i q a t l o n e nd a 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 ~. 4. Aci ci can intorlj t flis Cour t o! l h p On '.>ioa/stockbridl)(' r c l et i o n s c s r n e y bca r on suc 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 o i 5 S U'_ ~ S r e i s e d i n cc L c nda n t s ' no t t o n. r e ce n t n Ls t o r y 0,. t.hoc. p r o c oou r nq s, the r e s o L u t i o n o i r f p ropo rai c.,il l no t, ue t hvs~ pr o c l' c di n g s, in a sr.l u ~ h ~s am i ci o f fer thair 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 r memo 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 of pa rti cula~ con c ~rn t o a r. i c i.

79 Case: Document: 40-1 Page: 79 11/15/ SPA Amici believe t h a t t he i r p r e s e n c» in a i d the Co u r t in its cons i rr e r a t i o n of d e f e nda nts ' motion uitho ut pre j urii cin9 pa rties. t nes e p r ocr-e d i nq s v i Ll th~ 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 f consent. t he cons e n t o f t h e ga v e it s con son r, r.a r t i e s b ut thf> 1:0 t hoir.'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 'rr 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 r no s Ba nd r c s p..- c t f u Ll y r eques t l c e vc- of t h is Court t o e p pc a r a s e m i c i u n t h r- p r o c ood i nq s o n d.. f. ' ndit 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 sunrna 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 n Ge r y Kelde r Sy racuse Un i versi t y La u School Ernest I. u h i t c Hal l S y r acu s e, N.Y ~2 Attornoys for One i d a of tll~ 'rh a rac s Band ill-- c;;~~ ~rlinda F. Lockl ear Po s t 0(C icc Box 2 43 Knox v i l l p, ~lrl. 2J75a Francis Skp nandore Pos t of f i c e Bo x If, C) o nc t a, ut e 5.; El:' c A t t o rno y s f or Onei d.t r ndi e n Trihe of liisco nsin

80 Case: Document: 40-1 Page: 80 11/15/ SPA14 UNITED S' r ~ T ~S DI STRI CT COURT NORTHERfl D[ 51'tnCT O F NE;1 YORK TilE ~'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 AN D CF iw UI CJ\ti INDIA1IS, 1 ) ) Plaintiff, ) ) v. 1 TilE f,tate OF NEil YORK, e t al., I 1 ) ) 1 Ci vi 1 Ac t i o n No C V- tl t]{' (J udge rl r,, \ o y ) Th l..' On e i rte Indian 'r r il," 0 ;: ut s c o ns j n a n.t the On e I da o f the t-n eme s Banel, 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 iderat 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 tri 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 ccep 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 nci o nda n t s ' n ot ion Lo r.t u dqr-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 District.j udq o

81 Case: Document: 40-1 Page: 81 11/15/ SPA15 mu TED ~ T}"'T E$ DI ST RI CT COURT N0 RT IIE fhj DI~ TRI CT OF ~a: l1 YOR K 1 THE S TOCKBR I DGE-tWN S EE ItWI AN COHMUNIT Y, ) a l so kno wn as the STa C K 1 ~ R J D G E - r l U N S E E BAND 1 OF tlohi CAN I NDI AN S, ) ) pla in t iff, ) ) v. 1 1 THE STATE o r ~le:\l YORK, c c a I., 1 I _ De [ entl a n t s. ) 1 C i v i l Ac ti on No. R6 - C V ~ (Judg C' n c nv o y) Af f idavit o f Arl i nda F. Lockl e ar 1. T h e unders i gned i s a rao c n-o r i n g o o d sta nding of the t-c r s of No rth Carolina, t he Di s t r ic t of Co l umb ia, a nd Maryland. 2. Th e undersi g n e d i s c o uns e I o f r e c o rd fo r t he Oneida I nd i a n Tribe o f tr Ls c o n s i n i n Ortc i d a Ind 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 CV- 3 5 and :::V-I H7, No rthe r n Di s t r ic t of Ne w York. Fr a o ~i s sk~ n a ndo re i s co- counsp l \/ i t h t h e undersigne 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 f Wiscons in. In t h e s e su i ts, r e f p rred t o colle ct ive ly hp r e i n a s the One i d a la nd c l a im cas ~s, p la in t i ff s rissc r l t ri b~l l ~r l rt cl ~ i[ ~ s t o the a r oe i n ttu d i s on and o nci d a Co un t l o s k no v n.:15 t h c One i da Re s o r v a t i on. 3. Daan a r evcmcn e nd Gary Ke lder, wno a p pe a r on t h e f o r ego i ng Motion 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 ile O n e id ~ or the Thanos Band in tho O neid ~ land c la im cases. 4. Th e u nders i gned ha s r ep r e s ent e d the One ida I nd i a n Tr i be of ~ li s c on si n i n t h 0 oneida la nd clail~ c ases s i nce 1977 and t hll S Il as pe rsonal k nowl o dq e o f p r ocee d i nq s a nd positi ons taken t her e i n b y her cl i ent and 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 oe known as N f~w Sr o c kb r i d qr-, p r c-ncn t Ly c l e i mc d by p La i nu i Lf S t o c k b r id g ~ -r 1 u ~sc'(> Comnuni ty here in. 5. As c o u nse l of r e c o r d fo r the One ida I n d i an Tri be of li isconsi n in the One i d a l and 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 now d ism iss e d On@ ida c lu i ~s case a gainst thp Un i t0d s 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-d S t a te s, Do cke t 301, Indi a n Claims Co rami s s i o n, e nd t hu s has p e r s o ne I knowledge of p rocr~d i n gs an~ p o s iti o fls t~k en th"t0i n b y ha r clj0n t and other p la i n t iff s a s t he y r ~ a y r elate to t ile a r ea k nown ~ s r J n ~

82 Case: Document: 40-1 Page: 82 11/15/ SPA16 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 r th e purposes of pr ote c ting the i n t e r est s o f the oneida Indi a n Tr i b o of Hisconsin a nc the One ida of t h e> t'h ames nand, r e p r e s e otcd by ne s s r s, B'ra v e ma n and Ke l der I i n t b e Oneida land clj i n CnS(>5 an d to aid t his CO\lr t in it s del iberat ions hc r~i n. 7. Th e undersigne d soug ht the cons(, nt of p nrti e s to th is cas" for tho appcaranc0 o f t h e Oneid a I nd i an Tr i tle or 11lsco0510 and Oneida o f the T h 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 ho dcfe nua n t s d o not c o nsent. I declare un dor pe na lty of perjury t l1 a t the forego in g i s t rue a n(l c o r rec t. Post of fice Bo x 24 1 x no x v i l Le, ne ryj anc 2 17 S f-

83 Case: Document: 40-1 Page: 83 11/15/ SPA17 UNITED STATES DI STRICT COURT NORTHERN DISTRICT OF NEW YORK us G, noct1 THE STOCKBRIDGE-MUNS EE COMMUN ITY, known as THE STOCKBRIDGE-MUNSEE BAND OF MOHICAN INDI ANS, also "ljui1t N. D. Of N. Y. FILED L AT~ <_M. \,,;i_v'.:;... f j-; Y, (,..<; S 1. _...5:= Plaintiff, VS. 86-CV-1140 (Judge McAvoy) THE ONE I DA INDIAN NATION OF NEW YORK, Defendant Intervenor, and THE STATE OF NEW YORK, MARIO CUOMO, as Gover nor of the State o f New York ; NEW YORK STATE DEPARTM ENT OF TRAN SP ORTATI ON, FRANKLI N E. WHITE, as Commiss ioner of Trans portati on; THE COUNTY OF MADISON, NEW YORK; THE COUNTY OF ONEIDA, NEW YORK ; THE TOWN OF AUGUSTA, NEW YORK; THE TOWN OF L INCOLN, NEW YORK; THE VILLAGE OF MUNNSVILLE, NEW YORK ; THE TOWN OF SMITHFIELD, NEW YORK; THE TOWN OF STOCKBRIDGE, NEW YORK ; a nd THE TOWN OF VERNON, NEW YORK, Defendants. APPEARANCES: NATIVE AMERICA N RIGHTS FUND Attorneys for Pla i nti f f 1712 N. street, N.W. Washington, D.C OF COUNSEL : HENRY SOCKBESON, ESQ. HON. ROBERT ABRAMS At torney Genera l of the s t a te o f Ne w York At torney for Defendant New York State Department of La w Justice Building The Capitol Albany, New York GOODWIN, PROCTOR & HOAR Attorney for County and Municipal Defendants Exchange Place DAVID B. ROBERTS, ESQ. Asst. Attorney General ALLAN VAN GESTEL, ESQ. RECEIVED AO 72A (Rev. sea ocr N.A.A.F

84 Case: Document: 40-1 Page: 84 11/15/ SPA18 Boston, Massac huset ts CRAVATH, SWAIN & MOORE Attorneys f o r Defendant I ntervenors 825 8th Avenue New York, New York THOMAS D. BARR, ESQ. JOHN DeFRANC ISCO, ESQ. Local Counsel for Defendant Intervenors 1 21 East Wa t er St reet Syracuse, New York ARLINDA LOCKLEAR, ESQ. Attorney for Proposed Amicus Curiae Oneida Indians of Wisconsin P.O. Box 605 Jefferson, Maryland DAAN BRAVEMAN, ESQ. Couns el for Proposed Amicus Cur i ae Oneida of the Thames Band Syracuse University Co l l e ge of Law Ernest I. white Hall Syracuse, New York GUSTAVE J. 01 BIANCO, u nited states Magist rate-judge ORDER This matter was r e f erre d to t h e undersigned by the Ho no r a ble Th oma s J. McAvoy f o r the dis posit ion of various pret r ial 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 ' s i t acquired both aborigi nal and treatyrecognized 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 ( Nonintercourse Act), 1 s tat AO 72A IR~y

85 Case: Document: 40-1 Page: 85 11/15/ SPA19 - (now c odif e d a t 25 U. S.C. 177). Th e Stock bridge Indians' came from Massachusetts 2 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 permission 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, I' I I 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 confi rmed by New York s tate in the Treaty of Fort Schuyler in 1788 and in 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 (beginning in and ending in 1852), through various treaties a nd agre ement s with New York state which were not approved by the Federal Government as required by the Nonintercourse Act. The case was or iginally commenced against t he state of New York, Gov ernor 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 Indian Nation of New York subsequently, The SBM state t hat the Stockbridge (Mohican Indians) and t he Munsee (De laware I ndians ) were amalgamated some time in the 19t h Century and became t he SBM Community. 2 SBM presently reside in Wisconsin, but claim to be II po l iti c a l successors i n interest" to the Stockbridge Indians who came f rom Massachusetts to l i ve in New York State in the l a t e 's a nd ear ly 1800 ' s. 3 A072A raev. 8182)

86 Case: Document: 40-1 Page: 86 11/15/ SPA20 I II I 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 missionaries to take in groups of eastern indians. The New York One idas claim that they allowed the Stockbridge to occupy the land, The present but did not cede title to the Stockbridge. par ties have submitted motions and cross-motions f o r summary judgment. 3 In June of , 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 defendant i nt erve nors I II submitted papers in opposi tion t o the motion. Unfortunately, none of the papers associated with this motion were f iled by the Clerk's Office i n t he Northern Di s t rict 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 Ii Ii summary j Udgment motions, it was first discovered by t h i s court that a pending motion t o f i le an a micus brief exi sted. Be c a us e t he documents were not i n t he file, 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 against all defendants and the defendant i nt e r venor s. The State, County a nd Municipal defendants joint ly moved for summary judgment against t he plaintiff. The defendant intervenors have also filed a cross-motion for summary judgment. 4 AQ 72A (Rev 8:82)

87 Case: Document: 40-1 Page: 87 11/15/ SPA21 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 off icial s ther e of. The case was decided by t h e Supreme Court on June 2 4, Blatchfor d v. Noatak, III S. c t (1991). This court has also been made aware that a very similar if not identical i s sue ha s been presented in a n Indian land claim action that i s currently 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 ful ly briefed and argued. Gi v e n the possible jurisdictional importance of the Blatchford case, 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 ddition t o deciding the motion to file an amicus brief, this c ourt will a l so order t he parties t o submit briefs on the Eleventh Amendment i s s ue s raised by Blatchford. DISCUSSION Motio n to file an Am icus Brief : 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 definition ha s been interpr eted to mean that t he amicus serves for t he be nefit 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 doubtful or mistaken. Leigh v. Engle, 535 F. Supp. 418, 419 (N. D. I ll. 1982) (citations omitted). See also United states 5 AQ 72A IRev

88 Case: Document: 40-1 Page: 88 11/15/ SPA22 I! II v. Gotti, 755 F. Supp. at 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. Specifi cally, t he court i n Leigh sta t e d t h a t " i f the proffer 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 'I,I denied.... " I d. (citing C. Rembar, The Law of the Land (1980». Mo r e recen t c a selaw r ecog nizes t hat by the natu r e of the adversary system, the amicus is not totally 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 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. I 'I I custom-hilt Machiner y. I nc., 59 4 F. Supp. 894, (E.O. Pa ) (citing Alexander v. Hall, 6 4 F.R.D. 152, 155 (D.S.C. 1974». The court may determine whether i t finds the information timely or useful in its decision. Leigh, 535 F. Supp. at 420. I n the instant case, the proposed amici are clearly no t i mpa r t i al. I n fact, t heir brief 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 hat they can assist the 6 AO 72A tat;lv. Sttm

89 Case: Document: 40-1 Page: 89 11/15/ SPA23 cour t with t he historical background o f the One ida/stockbridge relations in or der that the court may c ons i der a l l the r elevant information in making its decision. Proposed amici cite United States v. Yonkers Contracting Co., 697 F. Supp. 779, 781 (S.D.N.Y ) for the p r opositi on that an interested non-par 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 amici that i nfluences 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 filed in conjunction with the mot i ons for s ummar y j Udgme nt shows that all 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 amici 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 court finds t hat it i s unnece s s ary to grant the motion. Notwi thstanding t he above decision, the court understands that t he proposed ami c i do have relevant knowlege o f t he facts sur r ounding the Stockbridge/Oneida relationship. Thus, t he mot i on will be denied wi t hou t prej udice 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 prejudice, and it is further ORD ERED, that the d e f endant s ha ve fourteen ( 14) days from 7 AO 72A lrev. 8,82)

90 Case: Document: 40-1 Page: 90 11/15/ SPA24 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. 'I, United states Mag~strate Judge 'I Dated: October / ~ Syracuse, New York ", 'I! 8 '\072/0, 'Rev. 8, a2l