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CAYUGA INDIAN NATION OF NEW YORK v. PATAKI

December 23, 1999

THE CAYUGA INDIAN NATION OF NEW YORK, ET AL., PLAINTIFFS, AND THE SENECA-CAYUGA TRIBE OF OKLAHOMA, PLAINTIFF-INTERVENOR,
v.
GEORGE E. PATAKI, ET AL., DEFENDANTS.



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

  MEMORANDUM-DECISION AND ORDER

On December 20, 1999, the court heard oral argument with respect to a number of motions in limine made by the plaintiffs, the Cayuga Indian Nation of New York ("the Nation") and the Seneca-Cayuga Tribe of Oklahoma ("the Tribe"),*fn1 the plaintiff-intervenor, the United States of America ("the U.S."), and the State of New York ("the State"), one of the defendants in this action. After slightly more than four hours of oral argument, the court strongly hinted at how it would rule on some but not all of these motions. The court further indicated that a written decision would be forthcoming shortly addressing all of these motions. Following constitutes the same.

I. Tribal Plaintiffs

A. Amendment/Partial Summary Judgment

The court will first address the simplest of the present motions (and hence, the only one to which there is no opposition) — the Tribal plaintiffs' separate motion to amend their respective complaints and for partial summary judgment against the State on the issue of liability. This motion is purely a procedural housekeeping matter. The bottom-line is that neither the Nation nor the Tribe named the State itself as a defendant in their original complaints, although various State agencies, departments and individuals, in their official capacities as State officers, were so named.*fn2 Among others, however, "Mario M. Cuomo [then governor] and the State of New York" did file an answer. Based upon the foregoing, the Tribal plaintiffs are seeking to add the State itself as a defendant pursuant to Fed.R.Civ.P. 15(b), which allows "amendments to conform to the evidence" to be raised "at any time, even after judgment."

Additionally, the Tribal plaintiffs are seeking partial summary judgment because in 1991, when the court granted them such relief, it expressly did so "as to all defendants except the State of New York[,]" inviting the State to make a motion on Eleventh Amendment grounds. Cayuga Indian Nation of New York v. Cuomo, 771 F. Supp. 19, 24 and n. 9 (N.D.N.Y. 1991) ("Cayuga VII") (emphasis added). Despite the fact that at last all of the liability issues in this case have been resolved, no liability judgment was ever entered against the State. Therefore, the Tribal plaintiffs are seeking the same in accordance with Fed.R.Civ.P. 56.

The State does not oppose either of these motions. See State of New York Defendants' Memorandum of Law in Opposition to Plaintiffs' Motions in Limine ("St.Opp.Memo.") at 44. The State does, however, assert one caveat, which it reiterated during oral argument: It "preserve[s] and incorporate[s] by reference all prior defenses and other arguments raised in opposition to plaintiffs' motions for partial summary judgment including the Eleventh Amendment." Id. With that understanding, and because granting these motions will serve the laudable purpose of ensuring that there is no ambiguity here, as least with respect to the status of the State as a defendant and its liability, the court grants the same.

B. "Additional Consideration"

Turning next to the Tribal plaintiffs' motions in limine, they strenuously argue that the court should "exclud[e] all evidence and testimony concerning `additional consideration'" which they may have received from the State.*fn3 Pl. Notice of in Limine Motion at 1. In a similar vein, the Tribal plaintiffs are seeking a "determin[ation] that the State . . . may not be credited with any payment made to the[m] with respect to the land which is the subject of th[is] case and [that the State] be excluded at trial from making any mention of . . . such payments." Id. at 2 (emphasis added). Evidently this dispute over the admissibility of "additional consideration" evidence has arisen primarily because of the Tribal plaintiffs' interpretation of the proposed testimony of John D. Dorchester, Jr., the State's real estate appraisal "expert." As the Tribal plaintiffs' view his testimony and report, Dorchester will end up concluding that they actually owe the State money, anywhere from $65-$95 million to as much as $795 million. See Plaintiffs' Joint Memorandum of Law in Support of Motion in Limine ("Pl.Supp. Memo.") at 11-12. The Tribal plaintiffs also find troubling Dorchester's supposed "credit[ing] [of] the State with the yearly annuity payments which the State agreed to pay [them,] regardless of whether such sums were actually paid[.]" Id. at 11 (emphasis added).

In their notice of motion, the only basis which the Tribal plaintiffs offer for excluding "additional consideration" evidence is the law of the case doctrine. In their memorandum of law, however, and again during oral argument, the Tribal plaintiffs focused more heavily upon the argument that because the 1795 and 1807 transactions were "illegal," and indeed, because the 1793 Nonintercourse Act made it a misdemeanor to negotiate for the purchase of land with Indians without a federal presence, the State should not be allowed to benefit from this asserted "criminal" conduct by seeking a set-off for these additional payments. The court will address these arguments seriatim.

1. Law of the Case

The Tribal plaintiffs argue that the law of the case doctrine bars proof of "additional consideration" paid by the State because "this Court has . . . ruled, [that] the receipt, amount or sufficiency of additional consideration for conveyances invalid under the Nonintercourse Act is completely immaterial with respect to the claim for damages for violation of the Act." Pl.Supp.Memo. at 9 (emphasis added). The State bluntly responds that this argument has "no basis in fact or in law." St.Opp.Memo. at 38. The court agrees. As will be seen, in making this broad assertion, the Tribal plaintiffs' are taking great liberties with prior rulings in this case.

To be sure, the consideration issue has previously arisen in this litigation. In making their law of the case argument, the Cayugas point to two separate passages in two different decisions of this court,*fn4 arguing that therein "this court has ruled that any additional consideration the Cayugas may have received is irrelevant for purposes of a violation of the Nonintercourse Act, and that such evidence is `completely immaterial[.]'" Pl.Supp.Memo. at 8 (emphasis added) and 9. Of course, as will be seen, this prior ruling does not impact the issue of consideration in the context of damages, an issue which was most decidedly not before the court in those earlier decisions.

There simply is no basis for barring evidence of additional consideration based upon the law of the case doctrine. First of all, as this court has recognized on several prior occasions, including most recently in Cayuga X, 1999 WL 509422, at *9, "the law of the case doctrine is not a commandment etched in stone." (internal quotation marks and citations omitted). It is, "at best, a discretionary doctrine, which does not constitute a limitation on the court's power, but merely expresses a general reluctance, absent good cause, to reopen rulings that the parties have relied upon.'" Id. (quoting LNC Investments, Inc. v. First Fidelity Bank, N.A., 173 F.3d 454, 467 n. 12 (2d Cir. 1999)). Therefore, assuming for the moment that the passages upon which the Tribal plaintiffs rely to establish the law of the case did in fact hold as they suggest, that is, that consideration is irrelevant and immaterial to the issue of damages, given the discretionary nature of the law of the case doctrine, that doctrine does not necessarily bar this court from reconsidering that alleged determination.

There is, however, even a more significant reason why the Tribal plaintiffs' law of the case doctrine argument is misplaced. That is, as previously alluded to, the fact that while this court has held that consideration is "irrelevant," it did so in the context of an issue which is completely different than the damage issues which are presently before the court. In Cayuga III, this court held that any additional consideration which the Cayugas may have received over the years "has no bearing on the issue of whether there was compliance with the [Nonintercourse] Act." Cayuga III, 667 F. Supp. at 946 (emphasis added). Furthermore, at that same time, relatively early in this litigation, the court recognized the possibility that if they prevailed on liability, the Tribal plaintiffs receipt of "additional consideration may become pertinent to the issue of damages." Id. at 946 n. 7.

The validity of the treaties under the Nonintercourse Act is a completely separate and distinct issue from the amount of damages to which the Tribal plaintiffs may now be entitled. Likewise, also in the context of an issue wholly apart from damages, in Cayuga VII, this court did observe that the Tribal plaintiffs' efforts to secure additional consideration "did not magically transmogrify such invalid agreements into valid treaties[.]" Cayuga VII, 771 F. Supp. at 22 n. 5. But again, the issue of the relationship, if any, between the validity of the treaties and any consideration paid by the State simply has no bearing on the damage issues which are the subject of these motions. Therefore, the fact that this court has held that the State's consideration is irrelevant to the validity of the treaties under the Nonintercourse Act is not the law of the case with respect to the entirely separate issue of damages. Cf. Colonial Tanning Corp. v. Home Indemnity Co., 780 F. Supp. 906, 912 (N.D.N Y 1991) (prior ruling on discovery issue did not establish the law of the case with respect to whether a suit had been brought, thus triggering a duty to defend, where the existence of a suit was simply assumed for purposes of those discovery disputes, but not critical in terms of resolving those disputes). Accordingly, the court rejects the Tribal plaintiffs' argument that the law of the case doctrine bars evidence of consideration which the State has purportedly paid to the Cayugas both at them.

2. "Illegal Contract"

The Tribal plaintiffs' argument that the State actually committed "criminal activity" in treating with them in 1795 and 1807 is premised upon the following selected passage from the 1793 Nonintercourse Act ("the 1793 Act"):

  "[I]t shall be a misdemeanor, in any person not
  employed under the authority of the United States, in
  negotiating such treaty or convention, punishable by
  fine not exceeding one thousand dollars and
  imprisonment not exceeding twelve months, directly or
  indirectly to treat with any such Indians, nation or
  tribe of Indians, for the title or purchase of any
  land then held, or claimed[.]"

Nonintercourse Act, ch. 19, § 8, 1 Stat. 330 (1793) (emphasis added). Relying upon this language, the Tribal plaintiffs argue that "the State actually committed crimes when it `purchased' land from the Cayugas in 1793[sic] and 1807." Pl.Supp.Memo. at 13. Based upon that assumption, which, as will be seen, is unfounded, the Tribal plaintiffs further argue that the State should not be allowed to benefit from this asserted criminal conduct by introducing evidence at trial of consideration which it has purportedly paid to the Tribal plaintiffs in connection with the 1795 and 1807 conveyances — conveyances which they deem "illegal." Id. at 14.

There are two fundamental flaws with the Tribal plaintiffs' argument based upon section eight of the 1793 Act. First, they are misconstruing both the scope and import of section eight. This court has previously declared, as the State is quick to point out, that this particular provision is not penal or punitive in nature. See Cayuga Indian Nation of New York v. Cuomo, 565 F. Supp. 1297, 1327-28 n. 15 (N.D.N.Y. 1983) ("Cayuga II"). Thus, the court does not find persuasive the Tribal plaintiffs' attempts to characterize the State's violations of the Nonintercourse Act as criminal, such that the. State should not be allowed to introduce evidence of consideration which it allegedly has paid to the Tribal plaintiffs over the years.*fn5

Besides the fact that the section eight is not penal, there is a strong argument to be made that that section does not apply here, where it was the State and not an individual person which entered into the 1795 and 1807 transactions. Under section eight, only "persons" who did not negotiate, etc. in conformity therewith when purchasing, granting, leasing or otherwise conveying land with Indians, could be found guilty of a misdemeanor. To determine whether the State is a person within the meaning of section eight, the "`starting point' must be the language of the statute itself." Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 918, 63 L.Ed.2d 198 (1980). Section eight expressly refers to "[a]ny person not employed under the authority of the United States[.]" Nonintercourse Act, ch. 19, §, 8, 1 Stat. 330 (1793) (emphasis added). The Nonintercourse Act does not define person, and, as with many other aspects of that Act, the legislative history provides no insight.

A careful reading of section eight in its entirety reveals, however, that immediately following the misdemeanor language, upon which the Tribal plaintiffs so heavily rely, that statute did allow "state agents" to enter into a treaty for land with the Indians so long as there was a federal presence. Id. Thus, when Congress used the word "person" in section eight in connection with making certain transactions with Indians misdemeanors, it did not intend to include the states because later in that same section it expressly refers to "stage agents." This choice of words evinces a congressional intent to distinguish between persons and states insofar as section eight is concerned. Consequently, because the court is not convinced that the word "person" in section eight refers to states, and because it has previously held that that section is not penal in nature, it declines to hold that section eight bars evidence of additional consideration paid by the State here.

The second fundamental flaw with the Tribal plaintiffs' argument against allowing consideration evidence is their assumption that the 1795 and 1807 conveyances were "illegal contracts." From there, the Tribal plaintiffs devote a relatively lengthy portion of their memorandum to arguing (as they did again during oral argument) that illegal contracts cannot be enforced, and hence this court should not allow consideration evidence. The Tribal plaintiffs are conveniently overlooking the fact, however, that as a result of a Nonintercourse Act violation, such as occurred here in 1795 and again in 1807, those conveyances are "void ab initio." Oneida County, N.Y. v. Oneida Indian Etc., 470 U.S. 226, 245, 105 S.Ct. 1245, 1257, 84 L.Ed.2d 169 (1985). In other words, it is as though those conveyances never occurred. Thus, because of the obvious differences between the unique circumstances of the 1795 and 1807 conveyances, and what transpired in their aftermath, the court finds inapposite the "illegal contract" case law cited by the Tribal plaintiffs in support of their argument for precluding consideration evidence. In short, because the initial conveyances are a legal nullity, the State is not barred from producing evidence of consideration which it paid in connection therewith. Consequently, the court denies this motion to exclude such additional consideration evidence and, necessarily, it also denies the Tribal plaintiffs' motion to the extent they are seeking a declaration that the State should not be credited with any such payments.

The court hastens to add, however, that nothing in its ruling here today in connection with consideration should be interpreted as allowing wholesale the testimony of Mr. Dorchester or any other witness whom the State intends to call on the issue of consideration. As with all proffered evidence, there will have to be an adequate foundation for the same and a sufficient evidentiary basis. In other words, the court's ruling today with respect to consideration evidence is limited to a ...


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