The opinion of the court was delivered by: McCURN, Senior District Judge.
MEMORANDUM-DECISION AND ORDER
In this protracted land claim litigation, plaintiff tribes, as
self-described descendants of the Village of St. Regis, seek a
declaration of ownership and the right to possess approximately
12,000 acres of land in northern New York, plus damages for
almost 200 years of dispossession. The tribes and
plaintiff-intervenor the United States principally contend that
the subject land was reserved to the Indians of the Village of
St. Regis in the Treaty with the Seven Nations, 7 Stat. 55
(1796), and that defendant State of New York's acquisition of the
subject lands during a period from 1816 to 1845 contravened the
Indian Nonintercourse Act, 25 U.S.C. § 177.*fn2 The tribes and
the United States claim that title to the disputed property never
properly passed to the State and, in turn, never properly passed
to the other named defendants and members of the defendant class.
Defendants' instant Rule 12(b)(1) and (6) motions to dismiss
variously assert that some or all of the claims alleged must be
dismissed on a variety of grounds, including: (1) sovereign
immunity, (2) lack of standing, (3) failure to state a claim upon
which relief can be granted, (4) the equitable doctrine of
laches, and (5) the doctrines of res judicata or collateral
estoppel. For the reasons that follow, the motions to dismiss are
granted to the extent that res judicata bars the United States
and the St. Regis Tribe from asserting any Nonintercourse Act
claims involving the 1824 conveyance. The motions to dismiss are
denied in all other respects.
Familiarity with the considerable history of these consolidated
land claim actions is assumed but, for the sake of clarity and to
refresh the parties' and the court's recollection, a review of
the relevant procedural history and facts of each case is in
On July 27, 1982, the Canadian St. Regis Band of Mohawk
Indians, by their duly elected chief and council (Canadian Band
or tribe),*fn3 commenced this class action seeking a declaration
that the descendants of the Village of St. Regis own and are
entitled to possess certain land reserved to them in the Treaty
with the Seven Nations of Canada, 7 Stat. 55 (1796) (attached as
Exh 1 to Dkt. No. 191). The claimed lands include a six-mile
square tract located in northern New York State, as well as land
on or near the Grasse River (see Amended Complaint, Dkt. No.
13, ¶¶ 24-25 & Exh A.). The amended complaint alleges that
various appropriations of the subject land by defendant State of
New York (the State) violate the Nonintercourse Act. The Canadian
Band also asserts a claim pursuant to 42 U.S.C. § 1983, alleging
that it was deprived of rights, privileges and immunities secured
by the Constitution and laws of the United States because the
claimed land was taken under color of law. In addition to
recovering possession of the subject land, the Canadian Band
seeks damages from the State for alleged waste, and against all
defendants for alleged trespass and unlawful exclusion from the
land. Pursuant to Fed.R.Civ.P. 23(b)(1)(B), the
court certified a defendant class in this action.*fn4
Several months after filing 82-CV-783, the Canadian Band
brought this action*fn5 against the State defendants, Niagara
Mohawk Power Corporation and the New York Power Authority (the
NYPA), among others,*fn6 seeking a declaration that it owns and
is entitled to possess certain islands located in the St.
Lawrence River. Specifically, the Canadian Band seeks to recover
possession of the Croil Islands and Barnhart Island (see
Amended Complaint, Dkt. No. 5, ¶¶ 21-23 and Prayer for Relief, ¶
3), in addition to compensation for those submerged lands which
were formerly part of Croil Island (see id. ¶ 24, Prayer for
Relief, ¶ 6).*fn7 The amended complaint asserts that the State's
acquisition of the islands violated the Indian Nonintercourse Act
and the Treaty of Ghent, 8 Stat. 218 (1814). The Canadian Band
also asserts a § 1983 claim, alleging illegal deprivation of its
rights under the United States Constitution, and a Fifth
Amendment takings claim against the NYPA, the current possessor
of the islands. In addition to the above stated relief, the
Canadian Band seeks trespass damages for the alleged period of
On June 30, 1989, the St. Regis Mohawk Tribe by the St. Regis
Mohawk Tribal Council (the St. Regis Tribe or tribe), and the
People of the Longhouse at Akwesasne, by the Mohawk Nation
Council of Chiefs (the Longhouse or tribe), commenced this
defendant class action against the State and Municipal
defendants, the NYPA and various individuals. Like the Canadian
Band, the St. Regis Tribe and Longhouse land claims are
predicated on violations of the Nonintercourse Act and the Treaty
of Ghent, among others. The complaint seeks a declaration
pursuant to 28 U.S.C. § 2201 declaring that the conveyances of
land reserved in the Treaty of 1796, and the conveyances with
respect to Croil, Barnhart and Long Sault Islands, among others,
are null and void with no legal effect.
In addition, the St. Regis Tribe and the Longhouse claim a
violation of 42 U.S.C. § 1983, alleging that the subject lands
were taken under color of law, depriving them of the rights,
privileges and immunities secured by the United States
Constitution and the various treaties. The complaint also seeks
injunctive relief ejecting defendants from the above claimed
lands, and damages for (1) fair market rental value, (2) the
value of minerals and resources, and (3) waste, pollution and
In July 1989, the Canadian Band moved pursuant to Fed.R.Civ.P.
42(a) to consolidate 82-CV-783 and 82-CV-1114 with the St. Regis
Tribe's and Longhouse's then-newly filed action, 89-CV-829. In
October of that same year, the State, the NYPA and the Municipal
defendants filed pre-answer motions to dismiss in all three of
these actions — 82-CV-783, 82-CV-1114 and 89-CV-829. Thereafter,
in August 1991, the court consolidated the three actions.
Following consolidation, the court granted a series of stays in
order to facilitate ongoing negotiations between the parties.
Negotiations broke down, however, and the stay was lifted in
In November 1996, by joint motion, the above defendants
renoticed their respective motions to dismiss the complaints in
all three actions, supplementing the previously filed papers
supporting the motions. Thereafter, at the request of the
parties, the court stayed the litigation pending the Supreme
Court's decision in Coeur d'Alene Tribe of Idaho v. State of
Idaho, 42 F.3d 1244 (9th Cir. 1994), cert. granted,
517 U.S. 1132, 116 S.Ct. 1415, 134 L.Ed.2d 541 (1996). As a result of the
stay, defendants withdrew their motions to dismiss.
In August 1997, after the Supreme Court rendered its decision
in Coeur d'Alene, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438
(1997), this court directed the refiling of any motions to
dismiss. At the request of the parties, the court again issued a
series of stays to permit the continuation of settlement
negotiations. Negotiations failed in May 1998, and two months
later defendants again renoticed their respective motions to
On August 5, 1998, the United States moved pursuant to
Fed.R.Civ.P. 24 to intervene as of right in all three actions as
a plaintiff. Although the Municipal defendants took no position
on the intervention motion, they reserved the right to raise
issues of standing relating to the Canadian Band and the
Longhouse. The State defendants opposed the motion and the NYPA
apparently took no position. In October 1998, the court granted
the motion to intervene (see Dkt. No. 166).
The United States' complaint in intervention, filed in December
1998, alleges that the claimed land and islands were acquired in
violation of the Indian Nonintercourse Act and the 1796 Treaty
with the Seven Nations of Canada. The complaint seeks a
declaration that the Indians of the Village of St. Regis hold the
right of possession to the subject lands and islands, and damages
and other monetary relief for the Indians of the Village of St.
After agreeing that the previously filed motions to dismiss
were applicable to the United States' complaint in intervention,
the court directed defendants to resubmit their motions to
dismiss and set a new briefing schedule. In July 1999, pursuant
to Fed.R.Civ.P. 12(b)(1) and (6), the State, the NYPA and the
Municipal defendants filed the instant motions to dismiss all the
complaints. The Canadian Band, St. Regis Tribe, Longhouse and the
States oppose the motions. Oral argument was heard in September
Akwesasne is the Mohawk name for the area on or near the St.
Regis Reservation — a reservation that covers areas located in
both the United States and Canada. The St. Regis Tribe is an
federally recognized tribe whose members reside primarily on the
portion of the St. Regis Reservation located in Franklin County,
New York (see Complaint (89-CV-829), Dkt. No. 1, ¶ 5). The St.
Regis Mohawk Council governs the St. Regis Tribe.
The Longhouse describes itself as "`an Indian nation or tribe
of Indians' within the meaning of the [Nonintercourse Act]"
(id. ¶ 6). The Longhouse principally reside on the portion of
the St. Regis Reservation located in both Franklin County and the
Canadian Province of Ontario. The Longhouse is part of the Mohawk
Nation and is governed by the Mohawk Council of Chiefs.
The Canadian Band describes itself as "an Indian tribe
organized under the laws of Canada . . . [whose] members comprise
the majority of the decendants [sic] of the Indians of the
Village of St. Regis" (see Amended Complaint (82-CV-783), Dkt.
No. 13, ¶ 4). The Canadian Band resides on the Canadian side of
the St. Regis Reservation and is governed by the Canadian St.
Regis Band Council (now known as the Mohawk Council of
Put simply, the Canadian Band, the St. Regis Tribe and the
Longhouse all claim to be direct descendants of "the Indians of
the Village of St. Regis," and assert a single and undivided
interest in the subject land and islands. In other words, the
three tribes, with their three different governments, contend
that they all sprang from the Indians of the Village of St.
Regis. Accordingly, the three tribes assert a continuous
ownership and occupation of the subject land and islands since
before 1796 and, since that time, a continuous existence as one
people sharing a common heritage and social, linguistic, legal,
religious and other community ties.
I. The Original Reservation Land Claim
After the Revolutionary War, member tribes of the Seven Nations
of Canada — including the Mohawk villages of Kahnawake and
Akwesasne or St. Regis — claimed land located north and south of
the St. Lawrence River. The Seven Nations and New York State
subsequently negotiated the Treaty with the Seven Nations of
Canada, 7 Stat. 55 (1796), wherein the Seven Nations agreed to
cede, release and quit claim all rights to land in the State of
New York in exchange for specified compensation, with the
exception of the reservation of certain lands in New York State
for the benefit of the Indians of the Village of St. Regis.
Specifically the 1796 Treaty states:
That the tract equal to six miles square, reserved in
the sale made by the commissioners of the land-office
of the said state, to Alexander Macomb, to be applied
to the use of the Indians of the village of St.
Regis, shall remain so reserved. . . .
[T]here shall [also] be reserved, to be applied to
the use of the Indians of the said village of St.
Regis, in like manner as the said tract is to remain
reserved, a tract of one mile square, at each of the
[mills located on the Salmon and Grass Rivers], and
the meadows on both sides of the said Grass river
from the said mill thereon, to its confluence with
the river St. Lawrence. . . .
Treaty with the Seven Nations of Canada, 7 Stat. 55 (1796). It is
undisputed that this treaty complied with the Nonintercourse Act.
The above reserved land thus constituted the "original" portion
of the St. Regis Reservation located in the State of New York.
The current St. Regis Reservation comprises approximately 14,460
acres of the original reservation and is not at issue in these
consolidated actions. It is the remainder of the original
reservation — reduced by the State through a series of allegedly
illegal agreements and transactions — that is the subject of
82-CV-783 and 89-CV-829.
The first claim for relief in the Canadian Band's amended
complaint, the St. Regis Tribe and the Longhouse's complaint, and
the United States' complaint in intervention, alleges that
between 1816 and 1845, the State acquired title and interest to
portions of the original reservation by entering into several
unlawful agreements with persons purporting to represent the St.
Regis Indians (see Amended Complaint (82-CV-783), Dkt. No. 13,
¶ 49; Complaint (89-CV-829), Dkt. No. 1, ¶ 21; Complaint in
Intervention, Dkt. No. 167, ¶ 17). Specifically, the three tribes
and the United States allege the following seven transactions
contravene the Indian Nonintercourse Act and are thus void: (1) a
March 15, 1816 "treaty" whereby the State purchased 5,640 acres
of the original reservation, (2) a February 20, 1818 "treaty"
whereby the State purchased 2,000 additional acres of the
original reservation, (3) a March 16, 1824 "treaty" whereby the
State purchased the square mile tract on the Grass River
consisting of 640 acres of the original reservation, (4) a June
12, 1824 "treaty" whereby the State purchased an additional 1,000
acres of the original reservation, (5) a December 24, 1824
conveyance to the State of 144 acres of the original reservation,
with such conveyance purportedly confirmed by the New York
Legislature on April 20, 1825, (6) a September 23, 1825 "treaty"
whereby the State purchased 840 acres of the original
reservation, and (7) a July 21, 1845 "treaty" whereby the State
purchased the meadows on the Grass River consisting of 210.04
acres of the original reservation (see id. ¶¶ 50-59; id. ¶
21A-G; id. ¶ 17A-G). The tribes and the United States claim
that defendants and/or their predecessors in interest have
possessed the above lands without lawful authority at various
times from 1816 to 1845 until the present.
Additionally, the St. Regis Tribe, the Longhouse and the United
States allege that defendants and members of the defendant class
encroached upon and now wrongfully possesses other lands not
mentioned in the above transactions. These additional lands
include the surface and right of way of New York State Route 37
and certain portions of the Town of Bombay. The St. Regis Tribe,
the Longhouse and the United States assert that these additional
lands are part of the original reservation and were taken in
violation of the Indian Nonintercourse Act (see Complaint
(89-CV-829), Dkt. No. 1, ¶¶ 29-31; Complaint in Intervention,
Dkt. No. 167, ¶ 18). The complaint and complaint in intervention
also allege that original reservation land was taken in
contravention of the Nonintercourse Act when the New York State
Legislature passed an Act on April 5, 1810 declaring portions of
the Racquette River and St. Regis River in the County of St.
Lawrence to be public highways (see id. ¶¶ 33-34; id. ¶ 19).
From 1783 to 1814, the Indians of the Village of St. Regis
continued to exhibit ownership of the islands and, in fact,
leased portions of the islands to others. The War of 1812 ended
with the United States and Great Britain signing the Treaty of
Ghent, 8 Stat. 218 (1814). Under that treaty, the ambiguous
boundary between the United States and Canada was to be resolved
by two commissioners, one British and one American. The treaty
[I]n case any of the islands mentioned in any of the
proceeding articles which were in the possession of
one of the parties prior to the commencement of the
present war between the two countries, should, by
decision [of the commissioners] fall within the
dominions of the other party, all grants of land made
previous to the commencement of the war, by the party
having such possession, shall be valid as if such
island or islands had, by such decision or decisions,
been adjudged to be within the dominions of the party
having had such possession.
8 Stat. 218, 222. Thus, the rights of the Indians of the Village
of St. Regis were not to be affected by any resettling of the
boundaries. On June 18, 1822, the commissioners determined that
the subject islands belonged to the United States. See 8 U.S.
After that determination, the State, apparently ignoring the
tribe's occupation and use of the subject land, issued letters of
patent conveying title of the islands to various third parties.
In 1851, the Commissioners of the Land Office submitted a report
to the State Legislature indicating that if the subject islands
were in the possession of the United States before the Treaty of
Ghent, then the State had no right to make any land grants
concerning the islands, and those grants unfairly deprived the
St. Regis Tribe of rents they had been collecting on the land.
Subsequently, the Legislature passed an act in 1856 granting the
St. Regis Tribe $5,960. The amount represented the annual rents
the tribe would have collected from 1822 to 1856, plus six
percent interest, or alternatively the sum which in 1822 would
have extinguished the St. Regis Tribe's title to the islands.
Eventually, the subject islands were acquired by the NYPA, the
current possessor of the land. It is the series of conveyances by
the State of New York to various individuals, including the NYPA,
which allegedly contravene both the Indian Nonintercourse Act and
the Treaty of Ghent, thus rendering those transactions null and
void with no legal effect (see Amended Complaint (82-CV-1114),
Dkt. No. 5, ¶¶ 43-50; ...