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.
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."
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
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.
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
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 ...