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CAYUGA INDIAN NATION OF NEW YORK v. CUOMO

May 26, 1983;

THE CAYUGA INDIAN NATION OF NEW YORK, by its Chiefs, FRANKLIN PATTERSON, JAMES LEAFFE, VERNON ISAAC, KENNETH JOHN, and FRANK BONAMIE, Individually and as Members of the Cayuga Indian Nation of New York, Plaintiffs, and THE SENECA-CAYUGA TRIBE OF OKLAHOMA, Plaintiff-Intervenor,
v.
MARIO M. CUOMO,* as Governor of the State of New York, THE STATE OF NEW YORK, MILLER BREWING COMPANY, THE COUNTY OF CAYUGA, NEW YORK, CONSOLIDATED RAIL CORPORATION, DAVID L. KOCH, GEORGE G. SOUHAN, THE COUNTY OF SENECA, NEW YORK, and NEW YORK STATE ELECTRIC AND GAS CORPORATION, Individually and as representatives of all others similarly situated, Defendants; THE CAYUGA INDIAN NATION OF NEW YORK, By its Chiefs, FRANKLIN PATTERSON, JAMES LEAFFE, VERNON ISAAC, KENNETH JOHN, and FRANK BONAMIE, Individually and as Members of the Cayuga Indian Nation of New York, Plaintiffs, and THE SENECA-CAYUGA TRIBE OF OKLAHOMA, Plaintiff-Intervenor, v. WILLIAM J. KIRK, GAIL KIRK, HENRY W. KOCH, BARBARA F. KOCH, ROBERT MAIER, CHARLES HITCHCOCK, PHILO BACON, WILMA ANTHONY, DANIEL A. DePASQUALE, ALICE M. DePASQUALE, RICHARD HILL, and VIRGINIA HILL, Defendants



The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISION AND ORDER

 NEAL P. McCURN, D.J.

 The Cayuga Indian Nation and five chiefs of that tribe seek a declaration of their current ownership of and right to possess a 64,015 acre tract of land in central New York State, an award of fair rental value for the almost 200 years during which they have been out of possession, and other monetary and protective relief. The Cayugas allege that this tract is reserved for their tribe by treaties with both the United States and the State of New York, and has been subject to a restraint against alienation under the Nonintercourse Act, now codified at 25 U.S.C. § 177. Though the tract was conveyed to the State through transactions in 1795 and 1807, and thereafter conveyed, in large part, to private purchasers, the Cayugas claim that under federal law their right to possession has never been extinguished.

 This suit is one of a recent series of land claims brought by eastern Indian tribes in the federal courts. *fn1" Such claims have imposed upon the courts the painful task of determining whether, and how, federal commitments to tribes are to be enforced against states, against municipalities, and against innocent non-Indians who have for generations considered the land their own. Most of the claims, like this one, challenge the validity of conveyances by the tribes which occurred after the adoption of the Constitution, and after the enactment of the first Nonintercourse Act. Although as of this date only one such claim has reached a final judgment for the plaintiffs, Oneida Indian Nation of New York v. County of Oneida, 70-CV-35 (NDNY Oct. 5, 1981) (Port, J.), appeals docketed, (2d Cir. June 11, 1982; June 24, 1982), others have withstood a variety of challenges to the jurisdiction of the court and the legal sufficiency of the complaint.

 For example, it has been established that a claim asserting a possessory right conferred by treaty and protected by the Non-Intercourse Act is within the subject matter jurisdiction of the federal court, Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974); that the claim may be maintained by any bona fide Indian tribe, Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 377 (1st Cir. 1975); Narragansett Tribe of Indians v. So. R.I. Land Devel. Corp., 418 F. Supp. 798, 808 (D.R.I. 1976); and may be maintained without joinder of the federal government, Narragansett Tribe of Indians v. So. R.I. Land Dev. Corp., supra, 418 F. Supp. at 810-813; that defenses based upon state law such as adverse possession, statutes of limitation, laches, or estoppel by sale are unavailable to the defendants, Mohegan Tribe v. State of Connecticut, 638 F.2d 612, 615 n.3 (2d Cir. 1980); Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527, 541-44 (NDNY 1977); Schaghticoke Tribe of Indians v. Kent School Corp., 423 F. Supp. 780, 783-85 (D. Conn. 1976); Narragansett Tribe of Indians v. So. R.I. Land Devel. Corp., supra, 418 F. Supp. at 803-06; that the Nonintercourse Act was meant to apply throughout the United States and not only to land in "Indian Country", Mohegan Tribe v. State of Connecticut, supra, 638 F.2d 612; and is not geographically limited by the "surrounded by settlements" exception in the Trade and Intercourse Acts. Narragansett Tribe of Indians v. So. R.I. Land Devel. Corp., supra, 418 F. Supp. at 808-809.

 Further instruction on the maintainability of tribal land claims has recently appeared in a Second Circuit decision reviewing the dismissal of one such action by this Court. Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070 (2d Cir. 1982), aff'g in part and rev'g in part Oneida Indian Nation of New York v. State of New York, 520 F. Supp. 1278 (NDNY 1981). Although Oneida largely concerned a pre-constitutional claim (it was alleged that conveyances in 1785 and 1788 were invalid under Article IX, clause 4 of the Articles of Confederation), the Court's discussion of the availability of particular defenses is largely applicable to any tribal claim which asserts the nonalienability of Indian land under federal law. Thus it is pertinent here that the Second Circuit rejected in Oneida defenses based on the Eleventh Amendment immunity of states, id. at 1079-80, the nonjusticiability doctrine, id. at 1080-1083, state time-bars, id. at 1083-84, and federal time-bars, id. at 1084.

 Presently before the Court are further challenges to jurisdiction and the legal sufficiency of a tribal land claim. These challenges are raised by means of (1) a joint motion by the Counties of Cayuga and Seneca, Miller Brewing Company, Consolidated Rail Corporation, and New York State Electric and Gas Corporation (hereinafter "the non-state defendants"), who appear individually and as representatives of the defendant class, to dismiss the complaint pursuant to Rules 12(b)(1) and (6), Fed. R. Civ. P., and (2) a motion by the State of New York and Governor Carey (hereinafter "the state defendants"), also individually and as representatives of the defendant class, to dismiss the complaint pursuant to Rules 12(b) (1), (2) and (6), Fed. R. Civ. P.

 The arguments raised by the defendants in support of their motions are, to a large extent, variants of arguments presented to this and other courts in previous tribal land claim litigation. E.g., sovereign immunity, nonjusticiability, statutes of limitations, geographic nonapplicability of the Nonintercourse Act, equitable defenses. These have invariably been rejected in such cases and must be rejected in this case as well. The defendants have advanced other arguments herein which lead the Court into less well-charted territory. E.g., unavailability of an implied right-of-action under the Nonintercourse Act or of a federal common law remedy, abatement of statutory claims. However, for the reasons stated below, these relatively new contentions do not warrant dismissal of the complaint.

 I. THE PARTIES

 A. The Plaintiffs

 The plaintiff Cayuga Indian Nation of New York asserts that it is an Indian Nation or Tribe recognized by the United States and principally situated in New York State, though without a reservation. Its members maintain that they are the "direct successors in interest" to the Cayuga Nation of the Six Nation Iroquois Confederacy which, until the acts complained of in this suit, had occupied the subject land in New York State since time immemorial. They state that tribal relations have been continuously maintained to the present time.

 By Memorandum-Decision and Order of November 9, 1981, the Court granted a motion by the Seneca-Cayuga Tribe of Oklahoma to intervene as a plaintiff in this suit, pursuant to Rule 24, Fed. R. Civ. P. The Seneca-Cayuga Tribe had established sufficient interest in the action for the purpose of intervention by their allegations that, at the time of the challenged transactions, it had been "incorporated within and was a part of the Cayuga Nation of Indians." According to the Intervenor, the Cayugas split into two branches after they lost their Original Reservation to New York State. One branch settled in Western New York State, and is, apparently, the branch represented by the Cayuga Indian Nation of New York. The Intervenor Seneca-Cayuga Tribe purports to represent the other, larger branch of the Cayugas, which had moved first to Ohio, then to "Indian Territory" (now Oklahoma). The Order permitting intervention does not impair the right of the plaintiff Cayuga Indian Nation of New York or the defendants to challenge the Intervenor's entitlement to a share of the recovery from this lawsuit, if any is ultimately awarded. *fn2"

 B. The Defendants

 The initial complaint in this action, filed November 19, 1980, named numerous defendants sued individually and as representatives of a proposed class of "all other persons who assert an interest in any portion of the Original Reservation lands. . . ." Complaint para. 25. Those named included the Governor of New York, numerous administrative agencies, authorities and officials, the Counties of Cayuga and Seneca, various local governmental entities and officials, and various commercial and individual landowners. Plaintiffs have estimated the number of persons asserting an interest in the land as exceeding 7,000 individuals and entities.

 On December 1, 1980, the plaintiffs commenced a second action, Cayuga Indian Nation v. William J. Kirk, et al, 80-CV-960, asserting the same legal claim against twelve individual owners of land in the contested area. By Memorandum-Decision and Order of March 25, 1981, 89 F.R.D. 627, this Court ordered the consolidation of the two actions brought by the Cayugas, pursuant to Rule 42(a), Fed. R. Civ. P.

 By that same Memorandum-Decision and Order, as amended, this Court certified a defendant class, pursuant to Rule 23(b)(1)(B), Fed. R. Civ. P., for the purpose of litigating certain specified but key issues in this lawsuit. After notice to the class and a hearing, at which several individuals and a corporation lodged objections to the certification, all objections were overruled and a motion to decertify the class was denied. Order of March 31, 1982. A list of those named defendants who have been designated as representatives of the class for the purpose of this motion appears in the title of this decision.

 II. FACTUAL ALLEGATIONS

 Plaintiffs allege that from time immemorial until the late eighteenth century the Cayuga Nation owned and occupied over 3,000,000 acres in what is now central New York State. They produce as an exhibit to their complaint in 80-CV-930 a map indicating a strip of land, about 50 miles wide, running from Lake Ontario to the Pennsylvania border; the strip is labeled "Cayuga Aboriginal Land Area". The present suit is not an assertion of possessory rights to the entire Aboriginal Land Area, but to a portion thereof which was purportedly reserved for the Cayugas, then lost, in the course of the events alleged below.

 During the colonial period in our history, the British Crown pursued a policy of protecting Indian tribes in the peaceful protection of their land. In furtherance of this policy, a treaty was concluded in 1768 at Fort Stanwix, establishing a boundary between the American colonies and the Six Nations -- an Indian confederation comprised of the Oneida, Tuscarora, Mohawk, Onondaga, Cayuga and Seneca Nations. Plaintiffs state that a portion of this boundary corresponded to a portion of the eastern boundary of the Cayuga aboriginal territory.

 At the conclusion of the American Revolution, Congress assumed authority over relations with Indians, pursuant to Article IX, clause 4 of the Articles of Confederation. *fn3" In exercise of its new authority, and allegedly to promote peaceful relations with the Indian tribes, Congress issued a Proclamation in 1783 which reiterated its "sole and exclusive", but qualified, right to regulate trade and manage affairs with Indians. In addition, it prohibited the purchase of or settlement on certain Indian lands without the express authority and direction of the federal government.

 The following year, federal commissioners met with the Six Nations and concluded the Treaty of Fort Stanwix, 7 Stat. 15 (1784). Article II of the Treaty delineated the boundaries of the Six Nations, including the boundary of the Cayuga Nation.

 Notwithstanding the federal restrictions under the Articles of Confederation, the Proclamation of 1783 and the 1784 Treaty of Fort Stanwix, the State of New York concluded a treaty with the Cayuga Indian Nation on February 25, 1789 in Albany; the Cayugas thereby relinquished all of their lands to New York, reserving for their own tribal use the 64,015 acres that is the subject of this action. This remaining area, referred to by the Cayugas as the "Original Reservation", is depicted on the map attached to the complaint as two swaths of land on the eastern and western shores at the northern end of Cayuga Lake.

 Less than a week later, on March 2, 1789, the United States Government under the Constitution commenced. See, Oneida Indian Nation of New York v. State of New York, 520 F. Supp. 1278, 1323 (NDNY 1981).

 In 1790, Congress enacted the first in a series of Trade and Intercourse Acts, Act of July 22, 1790, ch. 33, 1 Stat. 137, pursuant to Congress' authority under Article I, § 8, clause 3 of the Constitution. Section four of that Act constituted the first Nonintercourse Act. It provided:

 
. . . That no sale of lands made by any Indians or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made or duly executed at some public treaty, held under the authority of the United States.

 The Trade and Intercourse Act of 1790, which included the above-quoted Nonintercourse Act, was a temporary measure, and expired in 1793. It was replaced by the Trade and Intercourse Act of 1793, Act of March 1, 1793, ch. 19, 1 Stat. 329, which in Section 8, contained a revised Nonintercourse Act:

 
. . . That no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the Constitution. . . .

 The Act went on to establish penalties for its violation, and to carve certain exceptions to its coverage. The "non-alienability clause" set forth above has remained substantially the same through successive re-enactments of the Act, and is now codified at 25 U.S.C. § 177.

 The Cayugas next state that on November 11, 1794, the Six Nations concluded another treaty with the United States at Canandaigua. This treaty, 7 Stat. 44, acknowledged the Original Reservation retained by the Cayugas through their treaty of 1789 with New York State, and contained a promise by the United States that the land would remain theirs until the Cayugas "chose to sell the same to the people of the United States who have the right to purchase."

 We are then told that on June 16, 1795, William Bradford, then Attorney General of the United States, issued an opinion on the question of whether the State of New York had a right to purchase land from the Six Nations or from any of the individual tribes without the participation of the federal government. The Attorney General concluded that, under the Nonintercourse Act of 1793, no sale of land by an Indian tribe was valid, nor could the claims of the New York Indians be extinguished, except by a treaty entered into by the federal government.

 On July 27 of that same year, however, while the Nonintercourse Act of 1793 was still in effect, a treaty was entered into at Cayuga Ferry, New York, by which New York State acquired the entire Cayuga reservation except for a three mile parcel on the eastern shore of Cayuga Lake. As consideration, the state agreed to pay the Cayuga Nation $1,800 annually in perpetuity.

 Plaintiffs allege that the treaty negotiations were conducted by state officials without the consent and approbation of the federal government. A federal official, Israel Chapin, was among those who signed the treaty on July 27 as a witness, but he purportedly informed the Secretary of War Pickering shortly thereafter that he had attended the treaty signing as a private individual and not as a commissioner representing the United States. *fn4"

 The Nonintercourse Act was re-enacted in 1796, Act of May 19, 1796, ch. 30, 1 Stat. 469, § 12; in 1799, Act of March 3, 1799, ch. 46, 1 Stat. 743 § 12; and in 1802, Act of March 30, 1802, ch. 13, 2 Stat. 139 § 12. In 1807, during the effective period of the 1802 Act, New York State purchased the remaining three mile parcel held by the Cayugas for $4,800. Plaintiffs allege that this conveyance, too, was without the consent and approbation of the federal government.

 III. PLAINTIFFS' CLAIM

 Plaintiffs have styled their suit "a defendant class action to declare plaintiffs' current ownership of and right to possess certain lands in the State of New York . . . the right to which is conferred by federal law and which is subject to restrictions against alienation." *fn5" Complaint para. 1. Their claim for relief assertedly arises under Article IX of the Articles of Confederation; the Proclamation of 1783; the Treaty of Fort Stanwix (1784); the Treaty of Canandaigua (1794); Article I, Section 8 of the United States Constitution (the Commerce Clause); 25 U.S.C. § 177 and its predecessor, the 1790 Nonintercourse Act, Article 37 of the 1777 New York Constitution, and the common law. Elsewhere in the Complaint, plaintiffs add that their title is protected by the Fifth and Fourteenth Amendments to the United States Constitution. Complaint para. 49. *fn6" With respect to the common law bases for their claim, references are made in plaintiffs' papers to "ejectment", "trespass", "waste" and "conversion", either as analogous forms of action or as indices of damages.

 The Seneca-Cayugas, in their Amended Complaint in Intervention, at 2, invoke 42 U.S.C. § 1983 as a further statutory basis for the action.

 As is apparent, the plaintiffs are not specifying a single source for their substantive possessory right, or a single source for their right of action. However, it may be noted here that the particular theory of plaintiffs' case which has been the focus of argument and is the focus of this decision is that plaintiffs' substantive right to the subject land has been confirmed by federal and state treaties, and has been subject to the restraint against alienation in the Nonintercourse Act; that the right to maintain this action is derived from the Nonintercourse Act itself or from federal common law.

 The relief sought by plaintiffs is (1) a declaration of their current ownership and right to possess the land in question; (2) an order restoring the plaintiffs to possession of the land and ejecting the defendants; (3) an accounting of all taxes paid on the land from 1795 to the present; (4) trespass damages in the amount of the fair rental value of the land since plaintiffs' dispossession; (5) establishment of a fund, comprised of all proceeds of any sales of the land in issue, for the satisfaction of trespass damages; (6) establishment of a fund, comprised of all tax proceeds collected by defendant counties for the land, for the satisfaction of trespass damages; (7) restitution for the value of all timber, oil, gas, coal, or other matter of value which has been extracted or removed from the land; and (8) establishment of a fund comprised of all future proceeds from the extraction or removal of the above natural resources.

 IV. SUBJECT-MATTER JURISDICTION

 The initial complaint invokes federal jurisdiction under 28 U.S.C. §§ 1331, 1337 and 1362. Plaintiff-Intervenors add § 1343(3) as the jurisdictional basis for their claim of deprivation of Constitutional and statutory rights. Having determined that the suit presents a federal controversy brought by an Indian tribe, the Court concludes that it has jurisdiction over the subject matter of this claim pursuant to § 1331 and § 1362.

 In Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974) (hereinafter " Oneida v. County of Oneida "), the Supreme Court considered a tribal claim conceptually identical to the claim now asserted by the Cayugas. The Oneidas alleged aboriginal ownership of a vast area of what is now New York State and further alleged that their right to possess a more modest area was confirmed by treaties with the federal government, including the Treaty of Fort Stanwix (1784) and the Treaty of Canandaigua (1794). Notwithstanding these treaties, and despite the restraint on alienability in the Nonintercourse Act of 1793, a portion of the land reserved to that tribe was ceded to New York State in 1795.

 The Court viewed the complaint in Oneida v. County of Oneida as asserting "a current right to possession conferred by federal law", id. at 666, and concluded:

 
Given the nature and source of the possessory rights of Indian tribes to their aboriginal lands, particularly when confirmed by treaty, it is plain that the complaint asserted a controversy arising under the Constitution, laws, or treaties of the United States within the meaning of both § 1331 and § 1362.

 Id. at 667.

 Neither of the movant-defendants attempt to distinguish Oneida v. County of Oneida from the case at bar, or otherwise contend that its holding is inapplicable here. Instead, the defendant New York State seeks to exclude itself from the jurisdiction of this Court by asserting sovereign immunity under the Tenth and Eleventh Amendments. That defense is addressed below, but it is noted here that the immunity of the State would at most deprive the Court of jurisdiction over the State, and not over the subject matter.

 Although the non-state defendants have also moved to dismiss for lack of subject matter jurisdiction, the defenses they assert either challenge the timeliness or legal sufficiency of the complaint (statutes of limitations, equitable defenses, geographic non-applicability of the Nonintercourse Act, no right of action, abatement of statutory claims) or the justiciability of the claim, which is a sui generis ground for dismissal, not a jurisdictional defect. See, Powell v. McCormack, 395 U.S. 486, 512, 23 L. Ed. 2d 491, 89 S. Ct. 1944 ("there is a significant difference between determining whether a federal court has 'jurisdiction over the subject matter' and determining whether a cause over which a court has subject matter jurisdiction is justiciable").

 Thus, none of the contentions advanced by the movants upsets our initial conclusion that the Court has jurisdiction over the subject matter of this action.

 V. SOVEREIGN IMMUNITY

 Defendant New York State seeks dismissal of the claim against it by reason of its sovereign immunity preserved by the Tenth Amendment or created by the Eleventh Amendment. In effect, the State requests this Court to reconsider its recent determination, in Oneida Indian Nation of New York v. New York State, 520 F. Supp. 1278, 1301-08 (NDNY 1981) (hereinafter " Oneida v. New York "), that Congress, in enacting 28 U.S.C. § 1362, abrogated the state's Eleventh Amendment immunity from tribal suits. *fn7"

 In the interim between the submission of papers on this motion and the issuance of this decision, that particular holding of Oneida v. New York was affirmed by the Second Circuit. In Oneida v. New York, 691 F.2d 1070 (2d Cir. 1982), the Court of Appeals stated as its premise that,

 
When the states granted to Congress the power "to regulate commerce . . . with the Indian tribes," U.S. Constitution, Art. I, § 8, cl. 3, they necessarily "surrendered a portion of their sovereignty," Parden v. Terminal Railway, 377 U.S. 184, 191, 12 L. Ed. 2d 233, 84 S. Ct. 1207 (1964), and thereby granted Congress the power to abrogate the state's immunity from suits upon claims arising out of such regulation.

 Id. at 1079-80.

 The Court then noted that the purpose of 28 U.S.C. § 1362, as discerned in Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 48 L. Ed. 2d 96, 96 S. Ct. 1634 (1976) was "to open the federal courts to the kind of claims that could have been brought by the United States as a trustee, but for whatever reason were not so brought." Id. at 1080, citing Moe, supra, 425 U.S. at 472. Satisfied that the Eleventh Amendment would not bar a suit brought by the federal government on behalf of an Indian tribe, the Court concluded that Congress, in enacting § 1362, "indicated an intent to remove the state's 11th Amendment immunity in suits brought by tribes." Id. at 1080. In closing the Court specified that states are subject to monetary damages as well as declaratory and injunctive orders under § 1362.

 There was no assertion of Tenth Amendment immunity in Oneida v. New York, as there is by the State here; however, that precise defense was recently considered, and unequivocally rejected, in Mohegan v. Connecticut, 528 F. Supp. 1359, 1367-69. This Court is in full agreement: there is no support for the view that the Tenth Amendment preserves any preconstitutional attributes of sovereign immunity which have not been abrogated by Congress and which would bar this type of claim. On the contrary, the rationale of the Oneida v. New York holding clearly applies -- perhaps in even greater force -- to the defense of Tenth Amendment immunity: the States implicitly granted Congress the power to abrogate their immunity with respect to Indian affairs within the scope of Congressional power under Article I; Congress exercised that power when it enacted § 1362. The explicit reservation of immunity in the Eleventh Amendment therefore cannot bar this action; a fortiori, any vestige of immunity under the more general Tenth Amendment would also be ineffectual.

 There are, of course, some attributes of state sovereignty which are specifically protected by the Tenth Amendment from the exercise of Congressional power under the Commerce Clause. See National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976). But the scope of such immunity is narrow, applying only where the state can show that (1) the challenged statute regulates the "States as States," (2) the statute addresses matters that are indisputable attributes of state sovereignty; (3) compliance would impair the state's ability "to structure integral operations in areas of traditional governmental functions." Equal Employment Opportunity Commission v. Wyoming, 460 U.S. 226, 103 S. Ct. 1054, 1060-61, 75 L. Ed. 2d 18 (1983), citing Hodel v. Virginia Mining & Reclamation Assn., Inc., 452 U.S. 264, 286-288, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981). It can hardly be contended, and New York does not contend, that the enforcement of the Nonintercourse Act can be avoided on immunity grounds under the Usery doctrine.

 VI. JUSTICIABILITY

 The non-state defendants have also asked this Court to renounce an aspect of its decision in Oneida v. New York, and hold that plaintiffs' claim is not justiciable. The argument is twofold: (A) the relief requested cannot be judicially molded, and (B) the action presents solely political questions.

 A. Availability of Relief

 Defendants have cited this Court's recognition, in Oneida v. New York, that "serious, if not insurmountable problems . . . would arise out of granting the plaintiffs the relief they seek," 520 F. Supp. at 1296, and that "an award of possession . . . would create utter chaos and disaster to many, socially, economically, and politically." Id. at 1295. They build upon these concerns by describing in their brief the more dramatic potential consequences of an award of possession: e.g., the loss of homes, businesses, and municipal facilities; the transfer of sovereignty over the land and its unwilling inhabitants to the Cayuga Indian Nation and its tribal government.

 The dire warnings of the defendants are not unheard by this Court, and should plaintiffs ultimately prevail the utmost circumspection and restraint will be employed in fashioning an appropriate remedy. But the fact that a particular remedy sought may be unavailable or impractical as too disruptive or unfair does not render a lawsuit unjusticiable, so long as there is some form of relief that the Court could fashion. Cf. Powell v. McCormack, 395 U.S. 486, 498-99, 23 L. Ed. 2d 491, 89 S. Ct. 1944. By way of example and not prediction, it may be noted that in the one recent tribal claim to reach final judgment, plaintiffs were awarded historically adjusted monetary damages as compensation for the illegal alienation of their land. Oneida v. County of Oneida, supra, 70-CV-35 (May 5, 1982), appeals docketed (by plaintiffs, June 11, 1982; by defendant, June 24, 1982).

 In Oneida v. New York, where the tribal plaintiffs sought some five million acres of New York land, this Court concluded that there were standards by which to formulate some relief should the plaintiffs establish their claim, 520 F. Supp. at 1297, and the claim was therefore justiciable. The Second Circuit upheld this Court on that point, observing that "Indian land claims have traditionally been asserted in the courts of this country for resolution." 691 F.2d at 1081. See also, Joint Tribal Council of Passamaquoddy Tribe v. Morton, 388 F. Supp. 649, 664 (D.Me.), aff'd, 528 F.2d 370 (1st Cir. 1975). In the Second Circuit's view, plaintiffs' request for a declaration of its possessory rights renders the claim justiciable, even if no other relief can be devised. Id. at 1082, citing Powell v. McCormack, supra, 395 U.S. at 517. But it refused to concede that a compensatory remedy could not be fashioned, or that "fair rental value" was an indeterminable basis for damages. Moreover, in response to an argument that the scale of the claim rendered it unjusticiable, the Court wrote, "we know of no principle of law that would relate the availability of judicial relief to the gravity of the wrong sought to be redressed." Id. at 1083.

 Defendants assert that great disruption has already been caused by the mere filing of this suit, and will worsen over the course of what promises to be lengthy litigation. The Court is aware of this and joins with other courts and commentators in regretting that too few of the eastern tribal land claims have been resolved by legislation or negotiated settlement. See, e.g., Oneida v. New York, 691 F.2d at 1081-82; Oneida v. County of Oneida, 434 F. Supp. at 531; Comments: Indian Land Claims Under the Nonintercourse Act, 44 Albany L.Rev. 110, 134-37; Clinton and Hotopp, supra, 31 Me. L.Rev. at 89. But in the absence of such preferable solutions, access to the courts is and must be available, and the hardship inflicted upon parties pendente lite does not render the suit nonjusticiable.

 B. Political Question

 Defendants next contend that this action poses solely political questions and is thus nonjusticiable under Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1961). They maintain that the issues raised have been constitutionally committed to either the President or Congress, and that adjudication by the Court creates a "potential for embarrassment resulting from multifarious pronouncements by various branches of the federal government." Baker v. Carr, supra, 369 U.S. at 217.

 The identical arguments were raised by the defendants in Oneida v. New York and rejected, both in this Court and on appeal. In so doing, the Second Circuit observed that the political question doctrine is "'essentially a function of separation of powers,'" citing Baker v. Carr, supra at 217, and it concluded that:

 
adjudication of Indian land claims such as the instant action is wholly consistent with the prevailing conceptions of the relationship among the three branches of government concerning the appropriate means to redress the ...

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