the State relating to the Treaties of Fort Stanwix and Harmar —
treaties which were entered into while this Nation was operating
under the Articles of Confederation — are irrelevant[,]" but the
Cayugas overlook the fact that the court specifically made that
relevancy determination in the context of "interpreting the
rights conferred by the 1794 Treaty of Canandaigua." Cayuga V,
758 F. Supp. at 116. The court there did not hold that such
evidence was irrelevant to the issue of damages, the issue which
now concerns the court. Thus, although through the years the
court, necessarily made certain pronouncements as to the
historical context of this dispute, the law of the case doctrine
does not mandate the conclusion that the same are binding in this
entirely different damage context. Cf. Colonial Tanning, 780
F. Supp. at 912. Thus, the court denies the Tribal plaintiffs'
motion to preclude the testimony of Professor von Gernet based
upon the law of the case doctrine.
So, insofar as the Tribal Plaintiffs' motions are concerned,
the court grants their motion to amend their respective
complaints to add the State itself as a defendant; the court also
grants their motion for partial summary judgment as to liability
against the State. However, the court denies the Tribal
plaintiffs' motion seeking to preclude evidence of additional
consideration. Likewise, the court denies the Tribal plaintiffs'
motion, based upon the law of the case doctrine, to preclude
Professor von Gernet's testimony.
Through its motions in limine, the U.S. seeks the following:
(1) a declaration that the measure of damages should be the
"valuation of the subject lands as an aggregated single unit
based upon the fair rental value for the use and occupancy of the
subject property in its `unimproved' state from 1795 to the
present, plus its present-day value in a similarly `unimproved'
state; and declaring and excluding any evidence to the contrary,"
which the State seeks to introduce; (2) reserving to the court
all issues of law and equity, leaving only fact issues as to the
amount of damages for the jury; (3) a declaration that the State
acted in bad faith; and (4) a declaration that the proposed
expert report and testimony of professor von Gernet be "excluded
as irrelevant and lacking in adequate foundation." U.S. Notice of
Motion at 2, ¶ 1 (emphasis added) and 2, ¶ 4.
The court will first address the bad faith issue. It will then
address the U.S.'s motion pertaining to Professor von Gernet,
which, as will be seen, encompasses, to some extent, the U.S.'s
motion to reserve all equitable issues for the court's
consideration. Last, but not least, the court will turn to a
consideration of not only the U.S.'s motion as to valuation
methodology, but also the State's motion in this regard because,
as will be seen, these arguments are really two sides of the same
A. Bad Faith
The United States contends that the fact that this court has
held that the State violated the Nonintercourse Act in 1795 and
again in 1807 when, without a federal presence, it entered into
treaties with the Cayugas, results in "a conclusive presumption
of [the State's] bad faith." U.S.Supp.Memo. at 19 (emphasis
added). On that basis the U.S. is seeking a declaration that the
State acted in bad faith, and hence "the evidence should be so
limited to reflect this finding[.]" Id. During oral argument,
the U.S. clarified the scope of this bad faith argument. By
seeking a definitive pre-trial ruling that the State acted in bad
faith, the U.S. is attempting to preclude the State from seeking
an offset for the benefit of its infrastructure improvements.
In support of this argument, the U.S. relies upon the liability
trial of the Oneida test case before Judge Port, as well as the
Second Circuit's decision in Oneida Indian Nation of New York v.
719 F.2d 525 (1983).*fn7 During the course of the Oneida
liability trial, Judge Port stated that "[t]he bad faith
consisted of the violation of the Non-Intercourse Act by the
State[.]" Plaintiff-Intervener [sic], United States', Opening
Memorandum in Support of its Motions in Limine ("U.S.Supp.Memo.")
at 18 (citing Oneida Trial Transcript at 167a). During the
course of that trial, Judge Port further observed that the State
acted in bad faith based upon its "knowledge of the requirements
of the Non-intercourse Act . . . and much historical data to
support that law." Id. Given these remarks, as well as the
prior liability determinations in the present case, the U.S.
argues, citing no case law directly on point, that a
Nonintercourse Act violation "in and of itself raises, as a
matter of law, a conclusive presumption of [the State's] bad
faith." Id. at 19 (emphasis added).
In response, the State declares that the "plaintiffs have
failed to establish that, as a matter of law, [it] acted in bad
faith[,]" reasoning that "a finding that [it] violated the
Nonintercourse Act in 1795 and 1807 is not, by itself,
conclusive evidence that it also acted in bad faith."
St.Opp.Memo. at 16 and 17 (emphasis added). As with the U.S., the
State does not offer any case law to support this broad
assertion. Despite that lack of precedent, the court agrees with
the State however. In this particular case, at this particular
juncture, Judge Port's remarks in Oneida certainly do not
compel a finding of bad faith on the part of the State. There are
a number of flaws in this argument by the U.S.
For one thing, Judge Port's remarks were made during the course
of the Oneida liability trial, not during the trial on
damages. And, as should be abundantly clear by now, in part
because of the unique nature of this land claim litigation,
findings in the liability phase of such litigation are not
necessarily conclusive with respect to the later damage phase.
Furthermore, different treaties were at issue in Oneida than
are at issue in the present case.
What is more, even if this court were inclined to find that
Judge Port's remarks should be given binding effect in this case,
the State's status in Oneida was markedly different than its
status herein. There, the State was a third-party defendant for
indemnification purposes; it was not a party to either the
liability or damage phases of the Oneida litigation. That
difference in the State's party status renders Judge Port's
remarks all the more superfluous in the present context where,
for now, the State is the sole defendant, potentially liable for
a significant monetary judgment.
Judge Port's observations in Oneida also do not support a
finding here that the State, as a matter of law, acted in bad
faith because in Oneida the Supreme Court eventually dismissed
the State from the third-party action on Eleventh Amendment
grounds. Therefore, that dismissal in and of itself would be
sufficient to deprive Judge Port's remarks of preclusive effect
in this action because, "[a] `judgment vacated or set aside has
no [such] effect.'" Motrade v. Rizkozaan, Inc., 1998 WL 108013,
at *85 (S.D.N.Y. March 11, 1998) (quoting Stone v. Williams,
970 F.2d 1043, 1054 (2d Cir. 1992) (other citations omitted)). In
sum, the court denies the U.S.' motion seeking a declaration that
the State acted in bad faith after the initial transactions, and
necessarily it also denies the U.S.' motion in limine to the
extent it seeks to preclude the State from offering evidence of
the State's good faith in this regard.
As an aside, the court observes that in any event, ordinarily
the issue of bad faith raises factual issues which are more
appropriate for consideration by a finder of fact. See, e.g.
Ally Gargano/MCA Advertising, Inc. v. Cooke Properties, Inc.,
1989 WL 126066, at *10 (S.D.N.Y. Oct.13, 1989) (plaintiff raised
a factual issue precluding summary judgment as to whether the
acted in bad faith in performing its obligation reasonably to
consent to proposed subleases); King v. Carlesimo, 662 N.Y.S.2d 838
(2d Dep't 1997) (the large discrepancy between the price paid
for some cooperative apartments and the market value of those
apartments created a jury question on the issue of whether those
apartments were conveyed in bad faith). And nothing before the
court on these motions persuades the court to disregard this
B. von Gernet