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CAYUGA INDIAN NATION OF NEW YORK v. PATAKI

October 8, 1999

THE CAYUGA INDIAN NATION OF NEW YORK, ET AL., PLAINTIFFS, AND THE SENECA-CAYUGA TRIBE OF OKLAHOMA, PLAINTIFF-INTERVENOR, AND UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR;
v.
GEORGE P. PATAKI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: McCURN, Senior District Judge.

MEMORANDUM-DECISION AND ORDER

Introduction

Given the progress in settlement negotiations at that time, at the August 6, 1999 status conference, at the parties' urging, the court agreed to hold in abeyance any rulings on these motions. With a December 2, 1999 trial date firmly in place, and given the current uncertain state of the negotiation process, however, the time has come, as the parties agree, to resolve these outstanding issues.

To that end, on September 2, 1999, the court conducted a telephone conference with all counsel. After hearing additional argument, the court indicated that it intends to adhere to the December 2, 1999 trial date and to proceed with the damage phase of this litigation; but at that time the only defendant will be the State of New York.*fn2 Set forth below are the court's reasons for proceeding in this fashion. Also set forth below are the court's reasons for refusing to hold the State jointly and severally liable for the entire amount of damages sustained by the plaintiffs in this action, and for declining to decertify the defendant class of landowners at this time.

Discussion

I. Joint and Several Liability

To avoid the possibility of conducting separate jury trials with respect to the approximately 7,000 private individual landowner defendants, as well as the four non-State defendants,*fn3 the United States*fn4 is seeking a ruling that the State is "both jointly and severally liable for the entire amount of monetary damages that the plaintiffs have incurred because of the wrongful dispossession and occupation of their lands[.]" U.S. Memo. of Law at 2 (emphasis added). The thrust of the United States' argument is that, as the purchaser of the subject land in 1795 and 1807, the State is the original tortfeasor and as such is liable not only for the damages sustained by plaintiffs as a result of those initial Nonintercourse Act violations, but also for the ensuing damages which they have sustained in connection therewith over the past approximately two hundred years.

Anticipating that granting the United States' motion as to joint and several liability will not expand their liability, the Counties do not oppose the same. Likewise, Miller Brewing does not oppose a ruling that "the State may be held responsible for the entire amount of plaintiffs' damages[.]" Feeherry Ltr. at 2. But as Class representative, Miller strenuously argues that "no one member of the Class can be held liable for all damages[]" because "individual Class members may only be held accountable for damages, if at all, under a trespass theory for the land they occupy, and for the amount of time they occupied it[.]" Id. at 1. Thus, Miller further argues that "while the State may be held responsible for the entire amount of plaintiffs' damages, no other defendant, and specifically no other member of the Class, is jointly and severally liable with the State, nor is the entire Class jointly and severally liable with the State." Id. at 2 (emphasis added). In light of the foregoing, not only is Miller strongly urging the court to deny this motion, it is also requesting a court order "[m]aking clear that no other defendant besides the State can be held responsible for all damages." Id.

Not surprisingly, the State opposes the United States' motion. Noting that the United States' joint and several liability argument is premised upon the theory of common law trespass, the State offers two reasons why it should not be held jointly and severally liable for the entire amount of damages sustained by plaintiffs, the Cayuga Indian Nation of New York and the Seneca Cayuga Tribe of Oklahoma (collectively referred to throughout as "the Cayugas"). First, although it is willing to admit that "the Cayugas may have had the right to possess the land up to the 1795 treaty," the State is taking the position that they "did not have possession of the land as that term is understood in relation to a trespass action after the State acquired the land." State Memo. at 10-11 (citation omitted). Hence, noting that possession of and title to land are two separate aspects of property rights, the State argues that the Cayugas do not have a remedy based upon common law trespass because they were not in possession of the land at the time of the trespass. Id. at 8. Second, the State argues that even if the Cayugas have a viable trespass claim, the harms here are divisible or distinct and hence the doctrine of joint and several liability does not apply. Although the United States' joint and several liability argument is not couched in terms of ejectment,*fn5 the State further asserts that it cannot be held jointly and severally liable for mesne profits under such a theory because it can only be held liable for ejectment damages for that portion of the subject land which it currently possesses.

Finally, even though the State does not believe that either the common law theory of trespass or ejectment provides a basis for a finding of joint and several liability, it does not disagree with the goal of this motion by the United States. The State would achieve that goal, however, by severely limiting the amount of damages which the Cayugas could recover from it. In particular, despite this court's prior ruling that recoverable damages will not be restricted solely to the fair market value of the subject property at the date of taking,*fn6 the State posits that literally thousands of individualized trials can be avoided by proceeding with a trial of damages against the State alone, and limiting recovery in such a trial to those damages which the Cayugas sustained as a result of the 1795 and 1807 violations of the Nonintercourse Act, 25 U.S.C. § 177. Then, perhaps realizing that those damages most likely would be wholly inadequate, relying upon Cayuga VIII, the State suggests that through pre-judgment interest the court can adjust that award to ensure that the Cayugas receive "just compensation." See State Memo. at 16, n. 9.

In resolving this motion, there is no need to become mired down in whether, as the State asserts, the Cayugas have a viable claim for trespass or ejectment, or both. As to ejectment, given this court's ruling that ejectment is not available as a remedy in this action, any discussion of the same is moot, whether couched in terms of liability or damages. Furthermore, it is too late to focus, as does the State, on whether the United States can "maintain an action for trespass." See State Memo. at 11 (emphasis added). The State's repeated emphasis on liability, see id. at 8, 10 and 11, misses the mark when, broadly stated, the issue is how to fashion relief for liability which was established years ago. Given the limited focus of the court's inquiry on this motion, at this late date in the proceedings, it will not revisit the issue of liability in any form. Joint and several liability has no place in this litigation; not, as the State asserts, because the Cayugas have failed to state a viable cause of action for trespass, but because (1) such a finding would be manifestly inequitable; (2) the injury here is divisible; and (3) the non-State defendants are, at most, independent, successive tortfeasors.*fn7

Before elaborating on these reasons, the court is compelled to comment, once again, upon the unique nature of this case, especially in its current posture. As the parties are well aware, the Cayugas are seeking to enforce a "federal common law" right of action for violation of their possessory property rights, see Oneida County, New York v. Oneida Indian Nation of New York State, 470 U.S. 226, 235, 105 S.Ct. 1245, 1252, 84 L.Ed.2d 169 (1985) ("Oneida V") (emphasis added), as well as seeking to vindicate their rights under the Nonintercourse Act. Unfortunately, that Act is silent as to remedies, thus leaving courts to resort to the common law as a means of "assist[ing] . . . in formulating a statutory [Nonintercourse Act] damage remedy." See Oneida Indian Nation of New York v. Oneida County, 719 F.2d 525, 530 n. 6 and 540 n. 17 (2d Cir. 1983), aff'd in part, rev'd in part, on other grounds, Oneida V, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169. Therefore, in molding a remedy in the present case and in structuring a manageable trial, in the court's opinion it may well be appropriate, and indeed necessary, to fashion a federal common law remedy, which although having some resemblance to remedies available for common law torts such as trespass, is a remedy uniquely tailored to fit the needs of this unparalleled land claim litigation. As the discussion below demonstrates, however, ...


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