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October 2, 2001


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


Table of Contents

Introduction 271
Background 272 I. Pre-Trial Motions 272 II. Jury Instructions 273 III. Verdict 273
Discussion 275 I. Verdict 275 II. Pre-Judgment Interest 284 A. Wickham Analysis 286 1. Full Compensation 286 2. Nature of Statute 288 3. "Other General Principles" 291 4. Fairness of Relative Equities 293 a. Burden of Proof 297
Historical Evidence 300 I. Pre-Revolutionary War 304 II. American Revolution 305 A. Wyoming Valley 305 B. Sullivan-Clinton Campaign 306 C. Articles of Confederation 309 D. Cayuga Factions 309 E. 1784 Fort Stanwix Treaties 310 F. Livingston Lease 312 G. 1789 Treaty at Albany 314 H. Nonintercourse Act 321 I. Richardson Lease 322 J. 1793 State Statute 324 1. Aftermath of the 1793 Statute 327 K. 1794 Federal Treaty of Canandaigua 328 L. New York State's 1795 Act and the Council of Revision 330 Mont. 1795 Treaty of Cayuga Ferry 331 1. State's Awareness of Nonintercourse Act 332 a. Pre-1795 Awareness 332 b. 1795 Awareness 334 2. Negotiation Process 340 3. Commissioners' Conflicts of Interests 343 4. Sale of Former Cayuga Lands 346 5. Adequacy of Consideration 347 N. 1807 Treaty 351 O. 1807 Onward 353 1. "Bad Faith" 355 2. Delay 356
Economic Evidence 358
Conclusion 366


On January 18, 2000, the court commenced with jury selection in this historic land claim litigation. The court's resolution of the liability issues,*fn1 left only one issue for the jury's consideration — the amount of compensation, if any, to which the tribal plaintiffs, the Cayuga Indian Nation of New York and the Seneca-Cayuga Tribe of Oklahoma ("the Cayuga"),*fn2 were entitled for the loss of their tribal lands over two centuries ago. Nineteen days, six witnesses, whose testimony comprises the nearly 3,000 page trial transcript, and approximately 130 exhibits later, on February 17, 2000, the jury rendered its verdict. It found the State of New York ("the State")*fn3 liable to the Cayuga in the total amount of $36,911,672.62. Those damages were divided into two categories: (1) $1,911,672.62 for the fair rental value of the Cayuga's former homeland for 204 years; and (2) an additional $35,000,000.00 in damages for future loss use and possession of that same land.


No less than twenty years of litigation preceded that jury verdict. Assuming familiarity with the protracted and at times convoluted history of this action, the court will not repeat that entire history herein. To place the issue of prejudgment interest which now dominates this litigation in context, however, an overview of some of this court's rulings in recent years, especially as to remedies, is in order.

I. Pre-Trial Motions

Faced with several motions in limine seeking to "severely limit the remedies available to the Cayugas[,]" in Cayuga Indian Nation of New York v. Pataki, No. 80-CV-930, 80-CV-960, 1999 WL 224615, at *1 (N.D.N.Y. April 15, 1999) ("Cayuga VIII"), the issue of prejudgment interest first arose. Holding that federal rather than state law governs the issue of the availability of prejudgment interest, this court recognized its "sweeping discretion to decide whether to award prejudgment interest . . ., as well as [its] considerable latitude in establishing both the rate of interest and the accrual date." Id. at *17 (emphasis added). Ultimately, the court declined to decide whether the Cayuga were entitled to recover prejudgment interest because at that time the record was not sufficiently developed.

The court also was operating in a "legal vacuum" because the parties had not addressed the factors which the Second Circuit in Wickham Contracting v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 955 F.2d 831 (2d Cir. 1992), had identified as relevant in deciding "whether to award prejudgment interest[.]" See id. at *19 and *21. After reciting the Wickham factors, the court stressed that an award of prejudgment interest was not a foregone conclusion. Id. at *16.

With a date for jury selection looming, the parties sought further clarification on a variety of issues including, yet again, prejudgment interest. The court held that it would not receive proof of present day value during Phase I. In a final round of motions in limine made in anticipation of Phase I, the U.S. sought, inter alia, to have the court "reserv[e] to [itself] all issues of law and equity, leaving only fact issues as to the amount of damages for the jury[.]" Cayuga Indian Nation of New York v. Pataki, 79 F. Supp.2d 78, 86 (N.D.N.Y. 1999) ("Cayuga XII"). Adopting this approach, the court held that equitable issues such as laches would "be reserved to [it], and if necessary, the same may be the subject of post-trial motions and/or additional post-trial proceedings before the court, without a jury." Id. at 92.

II. Jury Instructions

At various points during Phase I the court instructed the jury in conformity with the pre-trial rulings outlined above. Among other things, in its preliminary instructions the court briefly explained the respective roles of the jury and the court, i.e., the court decides legal issues and the jury decides fact issues. Consistent with those different roles, the court further explained that the trial would occur in two phases. In Phase I the jury's task was to resolve the issue of the amount of damages, if any, to which the Cayuga would be entitled. The court then explained that there would be another proceeding after the jury trial where the Court would resolve certain equitable issues, such as interest.

At the close of the proof the court reiterated these points, explaining that "interest on the amount of any damages you may award, conversion to present day value of any past damages you may award," and "a possible reduction in any damages you may award to the plaintiffs due to their alleged failure to timely commence this action, that is, laches[,]" are all equitable issues outside the province of the jury. See Transcript ("Tr.") at 274849. Thus, the jury was unequivocally advised, not once, but twice that it should not concern itself with equitable issues such as interest. Consistent with the foregoing, the jury was explicitly instructed that it "should [not] . . . calculate an amount to compensate the plaintiffs for the fact that they did not have the use of the money between when the injury occurred and the present." Id. at 2773-74. That particular charge concluded by advising the jury: "It has previously been decided that the Court will determine whether an award of same will or will not be made in connection with the amount you determine as damages." Id. at 2774. The jury was further instructed that it "should not make any adjustment for the effect of inflation or the loss of use of the money." Id. at 2773 (emphasis added). Presupposing that it would award damages in dollars for the year the injury was sustained, the jury also was instructed that it "should not, . . . attempt to convert the value of the dollar at the time of the injury for which you have determined damages to an equivalent value in current dollars[]" Id. Further, insofar as calculating lost rent, the jury was instructed, "you must determine . . . the loss of the value of the use of the lands of the Cayugas for each of the 204 years they were wrongfully detained or prevented from the use of the land." Id. at 2768-69.

III. Verdict

The verdict form was fairly lengthy, but the jury only had to answer two discrete questions. The first was:

What amounts, if any, do you find that plaintiffs have been damaged for loss of use and possession of the claim area from July 27, 1795 to date as measured by a fair rental value without improvements but with infrastructure in place, less credit, if any, to the State for payments made to plaintiffs?

Gov. exh. 21 at 1, ¶ 1 (footnote omitted). The verdict form also required the jury to indicate for each year from July 27, 1795, through "2000 to date," the following: the "amount" of such loss; the "credit to the State[;]" and the "net amount." See id. at 1. For the first designated time period, from July 27, 1795 to the end of that year, the jury found that the Cayuga had sustained losses in the amount of $7,148.69. See id. For every full year thereafter through 1999, the jury found that the Cayuga had sustained losses in the amount of $17,156.86 per year. For the year 2000, to the verdict date, February 17, 2000, the jury found that the Cayuga had sustained losses in the amount of $2,859.48. See id. at 10.

In accordance with a stipulation between the Cayuga and the State, the jury then credited the State for its annuity payments to the Cayuga for the years 1795 through 1999. After finding total rental losses in the amount of $3,510,007.61, and payments by the State totaling $1,598,334.99, the jury concluded that the Cayuga were entitled to $1,911,672.62 for the fair rent value of the claim area over the 204 years. See id.

After polling the jury, the court advised the parties that it would not enter a final judgment at that time because of the outstanding issues which needed to be resolved in Phase II. The parties were given the opportunity within sixty days of the verdict to file any motions in relation thereto, but no such motions were filed. Anticipating Phase II, among other things, the parties filed their respective economists' reports. On May 17, 2000, after reviewing the same, those reports revealed an "enormous disparity[]" as to the amount of prejudgment interest to which the Cayuga may be entitled, and the court was forced "to conclude that it [could not] properly assess the availability of prejudgment interest in the first instance without some context, beyond the mathematical calculations found in th[ose] . . . reports." Cayuga Indian Nation of New York v. Pataki, Nos. 80-CV-930, 80-CV-960, 2000 WL 654963, at *3 (N.D.N.Y. May 17, 2000), amended on other grounds, 2000 WL 687901 (N.D.N.Y. May 22, 2000). Therefore, the court agreed to allow the parties' witnesses to testify as to certain "equitable factors[.]" See id. The court went on to list several such factors, but it did not mention allowing any witness to testify as to what the jury actually intended when it rendered its verdict. In the end though, the court was extremely generous in terms of the proof which it permitted during Phase II, reasoning:

Because the stakes are simply too high, the experts' views too antithetical, and the equities on all sides too important to disregard, . . . the only way to proceed at this juncture is to make every effort to insure that all parties to this litigation have an equal opportunity to present their respective versions of history, and how those versions impact the remaining issues of prejudgment interest and laches.

Id. at *4

The Phase II trial was lengthy and the court's task in analyzing the extensive proof adduced therein was an arduous one, to say the least. Under the best of circumstances analysis of the Phase II proof would have been difficult. But the court's task was unnecessarily complicated by the fact that all of the parties frequently either cited to a document which did not support their contention, or equally disconcerting, would take a quote out of context. All too often this selective quoting meant that when the court consulted a source document or the transcript, the assertion was not actually supported therein.*fn4 Moreover, when the court read such a quote in context the meaning was often times very different than that ascribed to it by the quoting party. The court is fully aware that lawyers have an obligation to represent their clients "zealously[,]" see N Y code of Professional Responsibility Canon 7, reprinted in N.Y. JUD. LAW Aim (McKinney Supp. 2001); but there are limits to such zealousness and a lawyer does not do his or her client any great service by engaging in such tactics which distract from a party's otherwise valid legal arguments and undermine a lawyer's credibility to a certain extent.


The issues the parties raise in connection with Phase II are legion. The first and in some ways perhaps most important issue pertains to the meaning of the jury verdict itself.

I. Verdict

More than four months after the jury rendered its verdict and more than four months after the jury's discharge, the State raised for the first time the possibility of an inconsistent verdict. In its June 30, 2000, memorandum of law submitted prior to Phase II the State did not employ the phrase "inconsistent verdict." Its economist Richard S. Grossman did not shy away from that concept in his report, unequivocally stating that the "verdict presents the Court with an inconsistency[.]" See St. exh. 721 at 10, ¶ 26. In the State's view this alleged inconsistency arises because in Phase I the jury, colloquially speaking, impermissibly compared apples and oranges. See Pre-Tr. Memo at 74.

This supposedly impermissible comparison occurred, Grossman believes, because the jury did not distinguish between current and constant dollars as he defines and employs those terms. In Grossman's report he wrote that from an economic standpoint there are "two types of dollars: `current dollars,' which are merely the dollars of a particular year in that year, and `constant dollars,' which are sums that are expressed in the dollars of one particular year (called the base year)." St. exh. 721 at 7, ¶ 18 (emphasis in original). When "compar[ing] quantities of dollars from different years," Grossman declared that "[i]t is not possible to make an economically meaningful comparison between sums denominated in dollars of different years." Id. at 8, ¶ 20 (emphasis added). Grossman therefore asserted "it makes no economic sense to add or to subtract sums denominated in dollars of different years[;]" yet that is precisely what the jury did Grossman concludes. Id. (emphasis added). Such calculations are in Grossman's new "completely unacceptable from an economic perspective[.]" Id. That type of calculation is "troublesome" suggests Grossman because, for example, when subtracting 1999 and year 2000 dollars, those dollars "differ in value by 3 percent[.]" Id. Accordingly, a meaningful comparison of dollars in different years can only be had, Grossman contends, when those dollars are "denominated in the constant dollars of any given year." See id.

Grossman posits that the jury disregarded these general economic precepts by crediting the State with payments to the Cayuga through the years in "current dollars," while at the same time using "constant dollars," as he defines that term, in determining the amount of lost rent in any given year. See id. at 9, ¶¶ 22 and 23. To support his theory as to how the jury calculated lost rent damages, Grossman made two assumptions. First, because "the `credit to state' column . . . corresponds exactly to the amounts actually paid by the [State] to the plaintiffs in each year of the 204-year period[,]" Grossman believes that "the figures stated in this column are clearly expressed in the dollars of the years in which they were paid, i.e., current dollars." Id. at ¶ 22.

Second, in determining the amount due the Cayuga each year for lost rent, Grossman hypothesizes that the jury used "constant" year 2000 dollars. To support this hypothesis, Grossman observes that the jury "award[ed] [a total of] $3.5 million divided up into 204 equal payments (since $3.5 million divided by 204 equals $17,156.86 exactly)." Id. at ¶ 23. Further, Grossman observes that the $3.5 million in lost rent damages, as found by the jury is (not coincidentally in Grossman's new), equivalent to exactly ten percent of the $35 million which the jury awarded the Cayuga for future loss of use and possession of the claim area. Given what Grossman deems to be this obvious correlation between the total rental value damages and the current fair market value of the land, and the fact that rents are identical in each year from 1795 to 2000, he concludes that "it is . . . clear that the jury expressed the lost rents in current dollars." Id.

Grossman also relies upon the court's instruction to the jury not to adjust the award or "attempt to convert the value of a dollar at the time of the injury[]" see Tr. at 2773, to support his conclusion "that the jury's verdict in the `amount' column is expressed in dollars of the year 2000." See St. exh. 721 at 9, ¶ 23. Additionally, Grossman opines that the dollars in the "amount" column cannot be expressed in current dollars because prices have not stayed constant over the past 204 years. See id. at 9, ¶ 24. Finally, Grossman believes in part that because the jury was instructed not to make adjustments for inflation, it "gave its verdict in the dollars it . . . knows best: constant 2000 dollars." See id. at 10, ¶ 25.

In light of the foregoing, instead of accepting the verdict on its face, the State maintains that the court should "adjust[]" the verdict "by either converting the annual rent to historical damages for each year or by converting the State payments to present-day dollars." State Defendants' Memorandum of Law in Support of their Request to Examine the Economic Witnesses on the Jury's Award for Fair Market Rental Value of the Claim Area at 2 (emphasis added); see also St. Post-Tr. Memo. at 70. The State argues that adjusting the jury verdict in this way is entirely proper because where, as the State believes occurred here, "the verdict is not clear on its face, it is appropriate to look at how the verdict was constructed[.]" Tr. at 6116. Once the court makes such an adjustment or conversion, the State wants the court to recalculate the jury verdict using those adjusted figures. The State contends that this process, as opposed to the process outlined by Grossman, which the State suspects the jury employed, will "yield a meaningful total net rental figure" from which the court can then compute prejudgment interest. See id.

In contrast to the State's approach, which requires interpreting the jury verdict, both the Cayuga's and the U.S.' respective economists, while arriving at different conclusions as to the amount of prejudgment interest, accept the verdict "at face value." See Cayugas' Post-Trial Memorandum ("Cay.Post-Tr.Memo.") at 22. Dr. Berkman, the U.S.' economist, acknowledged that his calculations were based upon "the numbers presented on the jury verdict form!]" See Tr. at 6053-54. The Cayuga's economist, Dr. Temin, similarly testified that in terms of yearly rent payments, he "started from the jury verdict form[.]" See id. at 5809. Thus Drs. Temin and Berkman assumed, in conformity with the charge, that the jury expressed both the State's credit payments and the fair rental value "in dollars of the particular year in which they were incurred." U.S. Post-Tr. Memo. at 60 (emphasis added). Any other reading of the verdict amounts to improper "second-guessing" of the jury's intent, according to the Cayuga. See Cay. Post-Thai Memo. at 20. Finally, characterizing Grossman's suggested "adjustments" to the verdict as "tampering" with the same, the Cayuga are taking the position that there is no need, and indeed it would be improper for the court to make the adjustments which the State is urging because such adjustments would "lead[] to a complete nullification of the jury's award[.]" Cayugas' Post-Trial Reply Memorandum ("Cay.Reply") at 8 (citations omitted); see also U.S. Post-Trial Memo. at 65.

Given these conflicting views as to the meaning of the jury verdict, the first issue which this court must consider is whether it is proper, in hindsight, to reexamine the verdict in an effort to ascertain how the jury arrived at the final damage figure for 204 years of lost rent. More specifically, in calculating prejudgment interest, should the court, as the State urges, "adjust" the dollar amounts as found by the jury, or should it simply make any prejudgment interest calculation it deems proper using the dollar figure, unadjusted, found on the verdict form.*fn5

  To support its argument that the court should "look behind" the jury verdict, the State relies heavily upon Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371 (2d Cir. 2000). According to the State, Sharkey stands for the proposition "that where the verdict is not clear on its face, it is appropriate to look at how the verdict was constructed[.]" Tr. at 6116. It is also "appropriate" under Sharkey, argues the State, for the court to consider evidence regarding the jury's intent in rendering its verdict. See id. at 6117.

In Sharkey, a case brought pursuant to the Age Discrimination in Employment Act ("ADEA"), the plaintiff argued "that because he did not include lost pension benefits in his calculations of damages . . . or attempt to quantify his lost benefits . . ., the jury must not have included them it its award[;]" hence the district court erred in denying an award of prejudgment interest and pension benefits. Sharkey, 214 F.3d at 375. The defendant countered that because the evidence included references to pension benefits offered to plaintiff's colleagues, when the jury awarded plaintiff "damages for [his] total financial losses[,]" it included the value of his lost pension benefits in the verdict. See id. (emphasis in original) (internal quotation marks omitted). The defendant also pointed to the fact that the jury had been instructed that plaintiff was entitled to recover his "economic loss[;]" and that he "was entitled to recover lost salary and benefits, including . . . fringe benefits." Id. Finally, the defendant noted that the jury was also instructed that it "may award [plaintiff] an amount equal to the salary and benefits he would have received . . . less the amount of salary and benefits he received after he left the employ of the defendants, including severance payments, pension benefits and amounts from other employers . . . ." Id. (emphasis in original) (internal quotation marks omitted).

Given the ambiguous state of the record as to whether the jury included the value of lost pension benefits in its verdict for "`total financial losses[,]'" the Second Circuit concluded that it was impossible to definitively say whether the jury included the value of such benefits in making its award. See id. Therefore, the Court instructed the district court on remand to "make a determination whether the jury's award included the value of lost pension benefits." Id.

On remand the Second Circuit also instructed the district court "to apportion the jury's award[]" to determine what part was attributable "to stock rights and options and the value of lost pension benefits[.]" Id. Such apportionment was necessary according to the Second Circuit because an award of "prejudgment interest may be inappropriate on the portion attributable to the value of lost pension benefits, if any." Id.

Sharkey does not mandate the conclusion that this court should, after-the-fact, in effect rewrite the jury verdict here. There is a fundamental distinction between Sharkey and the present case — a distinction which the State conveniently disregards. In Sharkey the district court's task on remand was to ascertain the scope of the jury's award and to apportion it. Here, the State is asking the court to engage in a far different task — a task which would, as will be seen, result in usurping the jury's function. In the present case it is not simply a matter, as it was in Sharkey, of ascertaining the scope of the jury's award and then apportioning it. Rather, analyzing the verdict in the manner which the State is advocating would require this court to examine the Phase I evidence in its entirety, as well as the jury instructions, and then speculate as to how the jury derived damages for fair rental value. The analysis which the State proffers through Grossman would also require the court to improperly assume that the jury disregarded the court's instructions. Plainly such an analysis goes far beyond any contemplated by the Sharkey Court.

of equal if not more import is that in Sharkey the possibility of an inconsistent verdict was never raised; but the State is raising that possibility now. Therefore, this court's obligations differ significantly from those of the district court in Sharkey. Because the State is claiming that the verdict is potentially inconsistent, this court has an obligation to harmonize the verdict where possible — an obligation which did not arise in Sharkey. In short, given the obvious differences between Sharkey and the present case, the court declines to rely upon the latter as justification for, as the State insists, ascertaining "how the verdict was constructed[.]" See Tr. at 6116.

In addition to Sharkey, to support its assertion that the court should scrutinize this verdict and adjust it in the manner which Dr. Grossman is urging, the State cites to Malarkey v. Texaco, Inc., 983 F.2d 1204 (2d Cir. 1993). Claiming that the district court's award of equitable relief, in the form of ordering plaintiff's promotion upon her reinstatement, "went far beyond making [her] whole, as mandated by the ADEA[.]" on appeal the defendant employer sought, inter alia, to set aside that relief for an abuse of discretion. See id. at 1214. The Second Circuit in Malarkey did observe that the district court had "surmised [that] the jury awarded plaintiff $65,000 by comparing her salary to that of . . . [another employee who was given the secretarial position to which plaintiff claim[ed] she was entitled]." Id. (emphasis added).

Relying upon the just quoted language from Malarkey, the State urges this court to "surmise" that the jury calculated its award in the manner which Dr. Grossman posits. The court will not do that because Malarkey presents an entirely different situation than does the present case. In exercising its "broad" discretion to fashion relief under the ADEA by ordering plaintiff's promotion, the district court in Malarkey was drawing what the Second Circuit implicitly found to be a "logical extension" of the jury's award "express . . . findings[.]" See id. In sharp contrast with what the State is asking this court to do, the district court in Malarkey did not adjust or rewrite the jury's factual findings; nor did it supplant those jury findings with its own — both of which would happen if this court were to adopt the State's argument. Analyzing the verdict as the State's economist suggests would require more than a "logical extension" of the jury's verdict. It would require this court to completely transform the Phase I verdict, so much so that it would result in substantially altering if not completely reversing that verdict. Clearly, such a readjustment of the jury's factual findings is not what the Second Circuit had in mind in Malarkey when it implicitly approved of the fact that the district court had surmised how the jury arrived at a back pay award. Because Malarkey is readily distinguishable from the present case, it does not advance the State's argument in any way. Accordingly, Malarkey does not, as the State contends, support this court reexamining and ultimately readjusting the jury's verdict as to fair rental value. In sum, the State has not brought to the court's attention any legal authority to support its argument that the court should essentially rewrite the jury's findings as to lost rent damages.

This omission by the State is all the more glaring given the plethora of case law set forth below pertaining to the sanctity of a jury's verdict and a court's duty to reconcile a purportedly inconsistent verdict. Typically that case law centers on situations where courts are confronted with potentially inconsistent verdicts in the context of either a motion for a new trial or a motion for judgment as a matter of law. Although the State is not seeking a new trial, those cases are instructive at this juncture nonetheless, particularly in the absence of any case law directly on point.

In this Circuit "`[w]hen confronted with a potentially inconsistent jury verdict, the court must `adopt a view of the case, if there is one, that resolves any seeming inconsistency.','" Densberger v. United Technologies Corporation, 125 F. Supp.2d 585, 598 (D.Conn. 2000) (quoting Turley v. Police Dep't of the City of N. Y, 167 F.3d 757, 760 (2d Cir. 1999)) (other citation omitted). Thus "`[b]efore a court may set aside a special verdict as inconsistent and remand the case for a new trial, it must make every attempt `to reconcile the jury's findings, by exegesis if necessary.''" Id. (quoting Turley, 167 F.3d at 760) (other citations omitted). "`[A]nd[,] if there is any way to view a case that makes the jury's answers to the special verdict form consistent with one another, the court must resolve the answers that way even if the interpretation is strained.'" Wright 194 F.R.D. at 57 (quoting McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1311 (2d Cir. 1993)) (other citation omitted). The mere fact that a trial court may disagree with a jury's verdict does not provide a basis for granting a motion for a new trial based upon an alleged inconsistent verdict. See Wright, 194 F.R.D. at 57 (citing Saloomey v. Jeppesen & Co., 707 F.2d 671, 679 (2d Cir. 1983)).

In assessing whether a given verdict is inconsistent, a court is not limited to examining "`just the [jury] answers themselves.'" See Densberger, 125 F. Supp.2d at 598 (quoting McGuire, 1 F.3d at 1311) (citations omitted). The court "`should refer to the entire case[,]'" see id., including jury instructions. See Finnegan v. Fountain, 915 F.2d 817, 820 n. 3 (2d Cir. 1990) (citing Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 118-22, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963)). "This duty `derives from the Seventh Amendment's obligation on courts not to recast factual findings of a jury, . . ., and is based on the notion that juries are not bound by what seems inescapable logic to judges.''" Densberger, 125 F. Supp.2d at 598 (quoting Indu Craft, 47 F.3d at 497) (other citations omitted).

In attempting to reconcile a seemingly inconsistent verdict, the Second Circuit has held that "[w]here `the district court properly instructed the jury . . ., [t]here is a strong presumption that the jury in reaching its verdict complied with those instructions.'" Id. Given that "strong presumption," the Second Circuit has held that "[a] jury's verdict reached after proper instructions must be upheld where there is a reasonable explanation for the jury's seemingly inconsistent answers." Bonner v. Guccione, 178 F.3d 581, 588 (2d Cir. 1999) (internal quotation marks and citation omitted). In fact, the Second Circuit has expressly stated that "[g]iven correct instruction on the law and no clear disregard for that instruction on the face of the verdict, a jury verdict must remain immune from questioning by the district court." Id. at 588 (internal quotation marks and citations omitted). As the foregoing principles show, the Second Circuit "has been aggressive in [its] efforts to harmonize inconsistent jury verdicts." Shaun P. Martin, Rationalizing the Irrational: The Treatment of Untenable Federal Civil Jury Verdicts, 28 Creighton L.R. 683, 717 (1995).

It is fundamental that "`[w]hen a jury returns a verdict by means of answers to special interrogatories [under Rule 49(a)], the findings must be consistent with one another, as they form the basis for the ultimate resolution of the action.'" Densberger, 125 F. Supp.2d at 598 (quoting Crockett v. Long Island R.R., 65 F.3d 274, 278 (2d Cir. 1995)). Furthermore, "where the special verdict answers appear to be inconsistent but there is a `view of the case that makes the jury's answer[s] . . . consistent, they must be resolved that way.'" Tolbert v. Queens College, 242 F.3d 58, 74 (2d Cir. 2001) (quoting Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962)). Here, because the jury was asked to make certain, specific factual findings as to the amount of damages, and because it was not asked to determine liability, this is a "special" verdict under Fed.R.Civ.P. 49(a). The present verdict further conforms with a Rule 49 (a) verdict in that it "did not offer the jury the ultimate choice normally called for by a general verdict — the defendant is liable to the plaintiff for a specified amount of damages, or the defendant is not liable to the plaintiff." See Bradway v. Gonzales, 26 F.3d 313, 317 (2d Cir. 1994) (internal quotation marks and citation omitted). Consequently, in analyzing whether or not this verdict is inconsistent, the court will treat the same as a "special verdict" in accordance with Rule 49(a).

The State, through its economist Grossman, is claiming that the verdict is inconsistent because purportedly when calculating fair rental damages, the jury uniformly employed year 2000 dollars in determining the yearly lost rent, but from those amounts it subtracted dollars in the year in which the State made payments. It is conceivable that the jury did in effect, as the State maintains, subtract apples from oranges. It is "equally rational to believe," however, that the jury did not engage in such a comparison. See Indu Craft, 47 F.3d at 497. In fact, keeping with its "`duty . . . to attempt to harmonize the jury's answers, if it is at all possible under a fair reading of the responses[,]'" the court has little difficulty finding that this verdict is not inconsistent. See Densberger, 125 F. Supp.2d at 598 (internal quotation marks and citation omitted).

Examining both the verdict form and the relevant jury instructions, as the court must, see Finnegan, 915 F.2d at 820 n. 3 (citation omitted), it can be readily determined that the jury found the amount of lost rent using dollars in the years in which that rent was lost — not as the State urges in year 2000 dollars. Any other reading of the verdict would require the court to assume that the jury disregarded the court's explicit instruction that it "should not, . . . attempt to convert the value of the dollar at the time of the injury for which you have determined damages to an equivalent value in current dollars[.]" Tr. at 2773 (emphasis added). In other words the jury was instructed, albeit implicitly, to award fair rent damages for each of the 204 years in the year those damages were sustained and not to convert the same to an equivalent value in year 2000 dollars — the year of the verdict.

Because "there is no indication to the contrary, it must be assumed that the jury followed [that] instruction[][.]" See Gierlinger v. Gleason, 160 F.3d 858, 875 (2d Cir. 1998) (internal quotation marks and citation omitted). By following the instruction not to convert, it is obvious that the jury found the amount due for lost rent in each of the 204 years in the dollars of those particular years. There is no dispute that the jury then subtracted dollars of each particular year in which the State made payments to the Cayuga. See, e.g., U.S. Post-Trial Memo. at 60; and Tr. at 6357. Thus, the jury did subtract like dollars. Consequently, there is a plausible explanation for the jury's answers regarding lost rent which eliminates the State's claimed inconsistency for that aspect of the jury's award.

The confusion here arises over the definition of "current." Grossman's definition of "current" is different than the meaning which the court, the lawyers and the jury attributed to "current" in connection with the instruction not to convert. According to Grossman, economically speaking "current" refers to "dollars of a particular year in that year [.]" See St. exh. 721, at 7, ¶ 18 (emphasis in original). Therefore, when Grossman read the instruction not to convert "to an equivalent value in current dollars[,]" he defined "current" differently, i.e., as "dollars of a particular year in that year." See St. exh. 721 at 7, ¶ 18. Applying that definition to the instruction not to convert, Grossman surmised that the jury calculated lost rent in year 2000 dollars and in keeping with his reading of that instruction, the jury did not convert those dollars to the years in which those losses were sustained. However, in the context of the court's instruction not to convert, "current" actually meant year 2000 dollars. Based upon that definition, the jury was instructed that it was not to convert the dollar at the time of injury, i.e., a 1795 dollar to current or year 2000 dollars.

The State is overlooking the fact, however, that "[l]ogical, not economic consistency is the touchstone[]" in evaluating a potentially inconsistent verdict. Webb v. GAP Corp., 936 F. Supp. 1109, 1125 (N.D.N.Y. 1996) (citing, inter alia, Crockett, 65 F.3d at 278). Thus, although a jury's verdict might be inconsistent from an economic standpoint, it does not necessarily follow, a fortiori, that that verdict is legally inconsistent. See id.

Having said that, the court recognizes that apparently to avoid the complex task of separating out specific rents for each of the 204 years at issue, the jury calculated lost rent by taking $3.5 million, or 10% of what it deemed to be the current value of the property ($35 million) and dividing it by each of the 204 years at issue. Presumably the jury found that that amount would adequately compensate the Cayuga for the accumulation of rental dollars for all of those 204 years. The effect of figuring lost rent in that way, when carried out over 204 years, according to the State, is to "overstat[e] the compensation in the early years and understat[e] it in the later years." St. Pre-Tr. Memo. at 75; see also Tr. at 6356-66. Assuming that is so, consistent with the court's explicit instruction not to consider interest because the court would do so at a later date, the jury recognized that it would be possible for the court to amend those rent figures and rectify that discrepancy through its award of prejudgment interest.

There is one additional reason for refusing to apply the State's rigid economic analysis to the jury's verdict which is that it would require the court to disregard firmly established legal principles — principles which were developed wholly apart from economic principles to preserve the efficient and fair administration of our judicial system. Adjusting the jury's verdict in conformity with the State's theory would require the court to find an inconsistency or conflict where none exists, which in turn would run afoul of the general notion that whenever possible a court must "reconcile and preserve even a seemingly inconsistent jury verdict." See Indu Craft, 47 F.3d at 497 (citations omitted). Furthermore, adopting the State's interpretation of the jury verdict would thwart the "powerful" policy of deferring to a jury verdict — a policy which persists "even in cases in which the jury has taken action that is at first blush difficult to explain." See Gentile v. County of Suffolk, 926 F.2d 142, 154 (2d Cir. 1991) (citing Auwood, 850 F.2d at 891). This policy of preserving the sanctity of a jury's verdict is especially compelling in a case of this magnitude which, as this court has previously recognized, "has so widely impacted every member, Indian and non-Indian alike, in the claim area community." See Cayuga XIV, 2000 WL 654963, at *4.

II. Pre-Judgment Interest*fn6

[T]he award should be a function of (i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court. . . . These other "general principles" include "[t]he certainty of the damages due the plaintiff[,]" and whether the statute itself already provides for "full compensation and punitive damages [.]"
. . . In addition to the factors enumerated above, "[t]he speculative nature of the damages in question will always be relevant to a sound decision on a consideration of whether prejudgment interest should be awarded."

Cayuga VIII, 1999 WL 224615, at *19 (quoting Wickham, 955 F.2d at 833-34, 835; and 836). In Cayuga VIII, the court recognized that recovery of prejudgment interest has been allowed even when a federal statute is silent on that issue, as is the Nonintercourse Act, so long as those "discretionary awards . . . `are fair, equitable and necessary to compensate the wronged party fully.'" See id. at *20 (quoting Wickham, 955 F.2d at 835). But, as this court further acknowledged, recovery of prejudgment interest has been disallowed in a number of situations, including: "`when the defendant acted innocently and had no reason to know of the wrongfulness of his actions, . . . when there is a good faith dispute between the parties as to the existence of any liability, or . . . when the plaintiff is responsible for the delay in recovery.'" Id. at *20 (quoting Cruz v. Local Union Number 3 of the Int'l Bdh. of Elec. Workers, No. CV89-4240, 1995 WL 374401, at *3 (E.D.N.Y. Feb.17, 1995)) (other citation omitted).

Summarizing the import of this prejudgment interest body of case law, in Cayuga VIII this court commented: "What should be obvious by now is that `[i]nterest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness.'" Id. (quoting Blau v. Lehman, 368 U.S. 403, 413, 82 S.Ct. 451, 7 L.Ed.2d 403 (1962)). When the defendants' motions in limine were before this court, the record was far from complete. Thus, the court declined to "make a prejudgment interest determination in [the] factual and legal vacuum[]" which existed at that time. See id. at *21. Recognizing the possibility of an abuse of discretion if it were to do so, the court denied those motions in limine to the extent they sought to preclude the Cayuga from recovering prejudgment interest altogether. See id. at *25.

Following Phase II, a five-week non-jury trial which included the testimony of a number of expert witnesses, the record is now fully developed as to the prejudgment interest issues which this litigation raises. The parties have also had ample opportunity to brief those issues. Accordingly, as Fed.R.Civ.P. 52 requires, the following constitutes the court's findings of fact and conclusions of law in this regard.

A. Wickham Analysis

The initial determination for the court is whether the Cayuga are entitled to an award of prejudgment interest in the first place. Only after making that determination will the court be in a position to consider the amount, if any, of such an award. In undergoing its Wickham analysis, the court will address the second factor listed therein, "fairness and relative equities," last because, as will be seen, the court is convinced that that factor is relevant not only to the issue of a party's entitlement to prejudgment interest, but also to the issue of the amount of any such award.

1. Full Compensation

Among other things, a prejudgment interest "award should be a function of . . . the need to fully compensate the wronged party, for actual damages suffered." See Wickham, 955 F.2d at 833. In arguing that a prejudgment interest award is necessary to fully compensate it, the Cayuga contend that they must be compensated for the lost "opportunity" cost, or, as the U.S. puts it, for the "time value of money[,]" see Pre-Trial Memorandum of the Plaintiff-Intervenor, U.S. ("U.S.Pre-Tr.Memo.") at 11 (internal quotation marks and citation omitted); that is, for not having the stream of rental income available to them over the past two centuries. The Cayuga also contend that the jury verdict was relatively low and hence prejudgment interest is necessary to assure that they are fully compensated. The State agrees that full compensation in the context of Wickham encompasses a "plaintiff receiv[ing] the full value of . . . money over the time during which plaintiff was deprived of that sum[,]" but it disagrees that "`full compensation[]' . . . is . . . a function of the amount of damages a jury awards[.]" See St. Pre-Tr. Memo. 33.

Case law discussing "full compensation" as that phrase is used in Wickham is scant and not particularly instructive in this context. However, lost opportunity cost as a part of full compensation is a widely accepted concept from a legal standpoint. Case law is replete with references to the time value of money. See, e.g., Osterneck v. Ernst & Whitney, 489 U.S. 169, 176, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (internal quotation marks and citations omitted) ("[W]e have repeatedly stated that prejudgment interest is an element of [plaintiffs] complete compensation."); Proctor & Gamble Distrib. Co. v. Sherman, 2 F.2d 165, 166 (S.D.N.Y. 1924) (Hand, J.) ("The present use of my money is itself a thing of value, and, if I get no compensation for its loss, my remedy does not altogether right my wrong."); Prager v. New Jersey Fidelity & Plate Glass Ins. Co., 245 N.Y. 1, 5-6, 156 N.E. 76 (1927) (Cardozo, J.) ("While the dispute as to the value was going on, the defendant had the benefit of the money, and the plaintiff was without it. Interest must be added if we are to make the plaintiff whole."). Courts' recognition of the time value of money is based upon the following reasoning, as succinctly put by one legal commentator:

If justice were immediate, there would never be an award of prejudgment interest. The injured party would receive an enforceable judgment immediately, with no loss in value from the time value of money. Because justice often takes many years to achieve, interest is added to the original judgment to ensure that compensation is complete.

Michael S. Knoll, Primer on Prejudgment Interest, 75 Tex. L.Rev. 293, 294 (Dec. 1996) (footnotes omitted).

Furthermore, although the three economists who testified during Phase II differed greatly in their conclusions as to the proper amount of prejudgment interest which this court might award, they agreed as to the meaning of opportunity cost and its relationship to prejudgment interest in this case. As the Cayuga's economist Dr. Temin defined it, "opportunity cost . . . [is] an economic term for the cost of [an] alternate activity[.]" Tr. at 5734. In terms of the Cayuga's lost opportunity cost in particular, Dr. Temin expounded:

If the Cayugas had not been injured at that time in the amounts the jury determined for each year, they theoretically would have had the amounts for each year which the jury awarded, and could have used or invested those funds. . . . Without that property or money, they incur the opportunity cost of property or money. . . . If we compensate for an injury in 1795 (or other past year) as if it took place today, we ignore the opportunity cost of this injury. We compensate the injured party for the dollar amount of the injury, but not for the foregone use of the injury sustained as the injury at the time of loss.

Nat. exh. 64 at 6, ¶¶ 16 and 17. In a similar vein, the U.S.' economist Dr. Berkman explained:

[I]f the jury found that there was a loss to the tribe, . . . as a consequence of actions in 1795 and they've identified those stream of losses, those losses by themselves don't compensate [the Cayugas] for those losses, . . . because it fails to recognize this opportunity cost that they, in addition to having those moneys, could have used those moneys for a variety of purposes or invested them, and we have to account for the fact that they would have benefitted from those incomes and prejudgment interest captures that additional benefit that they would have received, and that's the missing piece to make them whole.

Tr. at 5929. And although the State's economist, Dr. Grossman, radically departed from the other two economists insofar as his conclusion as to the amount of prejudgment interest which should be awarded here, he too agreed that the Cayuga had sustained a lost opportunity cost or, as he put it, the "missed opportunity of being able to invest." Tr. at 6087.

The economists are thus in agreement that in addition to sustaining monetary damages for the loss of their homeland over the past two centuries, the Cayuga have sustained monetary losses because they did not have that money available to them for investment or other purposes over the years. Such loss makes prejudgment interest necessary here to fully compensate the Cayuga. This conclusion is bolstered by the fact that the jury was explicitly instructed not to include prejudgment interest in its award, and as previously explained, it followed that instruction. See National Communications Association, Inc. v. Telephone and Telegraph Col, No. 92-CIV. 1735 (LAP), 1999 WL 258263 at *4 (S.D.N.Y. April 29, 1999) (plaintiff did not receive full compensation where no evidence suggested that the jury calculated and added such interest). Therefore, the Cayuga did not receive "complete compensation," which the Supreme Court has, as recently as June of this year, repeatedly defined as including such interest. See State of Kansas v. State of Colorado, ___ U.S. ___, ___;, 121 S.Ct. 2023, 2029, 150 L.Ed.2d 72 (2001) (citations omitted) ("Our cases since 1933 have consistently acknowledged that a monetary award does not fully compensate for an injury unless it includes an interest component.").

The Cayuga point out, as the court has noted, that the jury verdict of nearly $37 million was less than the $335 million suggested by the U.S.' real estate appraisal expert. See Cayuga Indian Nation of New York v. Pataki, Nos. 80-CV-930 and 80-CV-960, slip op. at 8 n. 4 (N.D.N Y April 19, 2000). The verdict also was less than that suggested by the State's real estate appraisal expert who "testified that total damages ranged from approximately 62 million dollars to approximately 40 million dollars." See id. In light of the foregoing, in the absence of prejudgment interest the Cayuga assert that the $37 million jury award "does not constitute full or sufficient compensation . . . for the loss of their homeland." See Cayugas' Pre-Trial Memorandum ("Cay. Pre-Tr. Memo.") at 26. The court agrees with the Cayuga that prejudgment interest is necessary for full compensation; but the court is highly skeptical that such interest should be used as a vehicle to augment or increase the jury's verdict.

The Cayuga have not cited to any authority wherein a court has held that prejudgment interest is necessary to fully compensate a plaintiff based upon the supposed inadequacy of the verdict. What authority there is pertaining to how, if at all, verdict size impacts prejudgment interest is contradictory and does not involve a Wickham analysis. In In Design v. K-Mart Apparel Corp., 13 F.3d 559 (2d Cir. 1994), the Second Circuit affirmed a district court's denial of prejudgment interest in a copyright case because there was a "sizable damage award" of $632,000.00. See id. at 569. The Second Circuit reached the opposite result, however, in Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371 (2d Cir. 2000), where it held that in denying prejudgment interest the district court improperly relied upon its belief that "the jury's award was already surprising[ly] genero[u]s[.]" Id. at 375 (internal quotation marks and citation omitted). Given the lack of directly relevant precedent, the court finds that regardless of the size of the verdict, the underlying purpose of prejudgment interest, to make the plaintiff whole again, see City of Milwaukee v. Cement Division, National Gypsum Co., 515 U.S. 189, 196, 115 S.Ct. 2091, 2096, 132 L.Ed.2d 148 (1995), would best be served by an award of prejudgment interest in this case.

2. Nature of Statute*fn7

Another Wickham factor which impacts an award of prejudgment interest "is whether the federal statute under which damages have been obtained is remedial or punitive in nature." See Nu-Life Construction Corp. v. Board of Education of the City of New York, 789 F. Supp. 103, 104 (E.D.N.Y. 1992). Where a statute is remedial, such as Title WI, which aims "to make persons whole for injuries suffered on account of unlawful employment discrimination[,]" see Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), an award of prejudgment interest is appropriate. See, e.g., O'Quinn v. New York University Medical Center, 933 F. Supp. 341, 344 (S.D.N.Y. 1996) (Title VII plaintiff entitled to prejudgment interest on back pay award given, inter alia, the "obvious remedial purposes" of that statute); National Communications Association, 1999 WL 258263, at *5 (quoting 47 U.S.C. § 206 (1982)) (remedial purpose of Communications Act which "provides that a carrier which has violated th[at] Act `shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation[]'" required prejudgment interest award). On the other hand, "where the statute itself already provides for full compensation or punitive damages," as do the antitrust laws, the Second Circuit has "suggested that prejudgment interest is improper[.]" See Wickham, 955 F.2d at 835 (citing, inter alia, Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 80 (2d Cir. 1971)) (prejudgment interest unnecessary given Clayton Act's treble damage provision, combined with absence of congressional intent as to prejudgment interest), rev'd on other grounds, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973).

Naturally the plaintiffs and the State strongly disagree as to the nature of the statute at issue herein — the Nonintercourse Act. The Cayuga argue that because the purpose of that statute is to "prevent Indians from improvident dispositions of their lands and becoming `homeless charges[,]'"it is remedial, thus mandating an award of prejudgment interest thereunder. See Cay. Post-Trial Memo. at 4 (quoting Cayuga Indian Nation of New York v. Cuomo, 565 F. Supp. 1297, 1323 (N.D.N.Y. 1983) ("Cayuga II")). Echoing this argument, the U.S. declares that "the oft-recognized protective purposes of the Nonintercourse Act against alienation of Indian lands easily encompasses the invocation of prejudgment interest in this case." U.S. Pre-Tr. Memo. at 28; and U.S. Post-Tr. Memo. at 7. The State's view of the Nonintercourse Act is the antithesis of the Cayuga's. The State deems that Act to be "prohibitory," and hence this court should refuse to award prejudgment interest. See St. Pre-Tr. Memo. at 50.

The Nonintercourse Act does not fit neatly into the category of either a remedial or a punitive statute. That statute may, as the State urges, be prohibitory in that broadly speaking it proscribes the acquisition of Indian lands without the Federal Government's approval. However, that prohibition does not necessarily render the Nonintercourse Act punitive. In fact, this court has previously recognized as much, albeit in a slightly different context, when in Cayuga II it held that it could not "accept the view that . . . the Nonintercourse Act . . . imposes a `penalty' or `punishment'[.]" See Cayuga II, 565 F. Supp. at 1327. This court went on to explain that the Nonintercourse Act "declares that certain transactions in land are of no validity in law or equity[;]" and "[t]he purpose of this restraint against alienation, was to protect Indian possessory rights." Id. In concluding that the Nonintercourse Act was "not penal[,]" this court further reasoned "[t]hough enforcement could work great hardship upon those who claim title through a transaction which is invalid under the Act, it is . . . manifest that the statutory disability was established not to punish, but to accomplish `some other legitimate governmental purpose.'" Id. at 1328 (quoting Trop v. Dulles, 356 U.S. 86, 96, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)) (emphasis added). In light of the foregoing, the State's argument that the Nonintercourse Act is prohibitory or punitive is misplaced.

The absence of a punitive damage provision in the Nonintercourse Act lends further credence to the view that that statute is not punitive. Moreover, as this court thoroughly explained in Cayuga II, there is a "judicial consensus" as to the purpose of the Nonintercourse Act, which is that Congress intended "`to protect the lands of the Indian tribes in order to prevent fraud and unfairness.'" Id. at 1322 (quoting In Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F. Supp. 649, 656 (D.Me. 1975)). As the case law outlined in Cayuga II shows, that protective purpose is "rather self-evident." Id. at 1323. In fact, in recognizing an implied private cause of action under that statute, the Second Circuit acknowledged the availability of a concomitant damage remedy, even in the absence of statutory language to that effect. See Oneida Indian Nation of New York State v. County of Oneida, 719 F.2d 525, 540 (2d Cir. 1983). Consequently, even though "the Nonintercourse Act of 1793 did not establish a comprehensive remedial plan for dealing with violations of Indian property rights," and even though it "contains no remedial provision[,]" Oneida County, N.Y v. Oneida Indian Etc., 470 U.S. 226, 239, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) ("Oneida II ") (emphasis added), that lack of a remedial framework does not undermine the fact that at its core the Nonintercourse Act is remedial in nature.

Neither the silence of the Nonintercourse Act as to prejudgment interest, nor the fact that it does not expressly provide for "full" or "just" compensation alters the court's view that fundamentally this statute is remedial. The fact that there is no mention of prejudgment interest in the Nonintercourse Act does not mean, as the State suggests, that such interest is not recoverable thereunder. Indeed, in Wickham the Second Circuit catalogued a number of Supreme Court decisions wherein recovery of prejudgment interest was allowed "under a variety of federal laws, despite the silence of the laws on the subject of interest." See Wickham, 955 F.2d at 834 (and cases cited therein) (emphasis added). Wickham itself was such a case; there, the Second Circuit upheld an award of prejudgment interest under the Labor Management Relations Act ("LMRA"), even though that statute is silent on the issue of such interest. See id. at 933-936; see also Securities & Exch. Comm'n v. First Jersey Sec., Inc., 101 F.3d 1450 (2d Cir. 1996) (affirming prejudgment interest award of approximately $52 million despite, inter alia, the absence of explicit statutory authorization).

This court is fully aware, as the State notes, that it is possible to infer intent to deny prejudgment interest from a statute's silence. Pursuant to Wickham such intent may be inferred "from (i) the state of the law on prejudgment interest, for the type of claim involved, at the time the statute was passed, and (ii) consistent denial by the courts of prejudgment interest under the statute and failure by Congress, despite amendments to the statute, to address prejudgment interest awards." Wickham, 955 F.2d at 834 (citing Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 336-39, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988)). Neither of those criteria are met in the present case however. Despite the vast record and the voluminous briefs, there is absolutely nothing before this court regarding the state of the law with respect to prejudgment interest when the Nonintercourse Act was first enacted in 1790. The State attempts to make much of the fact that the Nonintercourse Act has gone through a number of permeations with no mention of prejudgment interest. As already discussed though, that silence is irrelevant because prejudgment interest is recoverable even when a statute is silent on that issue.

Moreover, the extremely limited history of prejudgment interest recovery under the Nonintercourse Act is to the contrary. As the Cayuga note, in Oneida II, another eastern land claim case brought pursuant to the Nonintercourse Act, the district court did "award[] the Oneidas damages in the amount of $16,694, plus interest[.]" See 470 U.S. at 230, 105 S.Ct. 1245 (emphasis added). As outlined in Cayuga X, given the posture of that case on appeal, "[t]he propriety of an interest award was not before either the Second Circuit or the Supreme Court[]" in that case. See Cayuga Indian Nation of New York v. Cuomo, 1999 WL 509442, at *17 (N.D.N.Y. 1999) ("Cayuga X"). Therefore, the court rejects the Cayuga's argument that the Oneida district court's award of prejudgment interest for a mere two years, on damages less than $20,000.00, somehow provides justification for an award of prejudgment interest in this case where, among other differences, the damages span two centuries.

Likewise, the court does not give much credence to the State's argument that because the Nonintercourse Act does not contain explicit language authorizing "just" or "entire" compensation thereunder, the Cayuga should not be allowed to recover prejudgment interest. It is the presence, not the absence, of such language which augurs against an award of prejudgment interest. In a similar vein, because the Nonintercourse Act does not provide for exemplary damages or other excess recovery, the Wickham Court's admonition against the recovery of prejudgment interest under those circumstances is inapplicable here. See Webb v. GAP Corp., 949 F. Supp. 102, 106 (N.D.N.Y. 1996) (citing Wickham, 955 F.2d at 839).

To conclude, the court agrees with the Cayuga that the Nonintercourse Act's silence does not bar prejudgment interest here. Nor does the fact that that statute does not expressly provide for full or just compensation prevent the recovery of prejudgment interest. Furthermore, on balance the court is convinced that the Nonintercourse Act is essentially remedial, so that if otherwise appropriate, prejudgment interest should be allowed thereunder.

3. "Other General Principles"

As mentioned at the beginning of this court's Wickham analysis, among the "other general principles" which courts have deemed relevant to the issue of whether to award prejudgment interest in any given case are "[t]he certainty of the damages due the plaintiff,]" and conversely "[t]he speculative nature of the damages in question[.]" See Wickham, 955 F.2d at 835 and 836. The former factor, the certainty of the damages, "is the progeny of the old common law rule that forbade prejudgment interest when the damages were unliquidated or unascertainable up until the time of judgment." Webb, 949 F. Supp. at 106 (citing 5 Corbin On Contracts § 1048 (1964)). That rule has been relaxed, however, and "[p]rejudgment interest is now commonly awarded in cases where the loss cannot be determined with certainty at the time of injury, but is susceptible to calculation by the time of trial or judgment, e.g., wrongful termination cases, securities fraud cases, [and] patent infringement cases." See Thomas v. City of Mount Vernon, No. 89 Civ. 0552, 1992 WL 84560, at *1 (S.D.N.Y. April 10, 1992) (citing Wickham, 955 F.2d at 835-36). On the other hand, where damages awarded to a plaintiff in a section 1983 action for her false arrest were "unliquidated and inherently speculative[,]" in that they were based "exclusively" on her "emotional injuries[,]" and she had not sustained any "economic injury[,]" the court denied her motion for prejudgment interest. See Sulkowaska v. City of New York, No. 99 Civ. 4228, 2001 WL 428253, at *6 (S.D.N Y April 25, 2001) (internal quotation marks and citations omitted).

Only the State addressed these "other general principles" which are relevant to a "sound decision" as to whether or not to award prejudgment interest. See Wickham, 955 F.2d at 836. Prior to Phase I the State baldly declared "that a damages calculation which rests upon estimates of fair market value and rental or cash value of what was in effect wilderness land over 200 years ago is highly uncertain and speculative." State of New York Defendants' Trial Memorandum (St. Ph. I Tr. Memo.) at 66. Thus, reasoned the State, application of prejudgment interest "to such an award [would] severely exacerbate[] this inherent weakness in the damage calculation." Id. After the jury verdict and prior to Phase II, the State refined its argument. Given the admittedly "contradictory testimony" as to the proper methodology for valuing the subject property, and the experts' "widely divergent opinions as to the ultimate value of lost rents for property in the claim area[,]" the State now asserts that the jury's methodology for calculating damages was speculative, and hence it "caution[s] against an award of prejudgment interest where the other factors tip in favor of the State." St. Pre-Tr. Memo. at 53 and 52 (emphasis added).

The State's argument does not carry much weight with this court. Given the extraordinarily unique nature of this litigation, obviously the damages awarded by the jury were not as readily qualifiable as, for example, a back pay award in a Title VII case. See, e.g., McIntosh v. Irving Trust Co., 873 F. Supp. 872, 882 (S.D.N.Y. 1995) (emphasis added) (amount of back pay award in Title VII action "calculable by reference to the specific amounts of money the plaintiff has lost and the defendant has withheld[]"). By the same token, however, the damages awarded in this case are not "so conjectural that prejudgment interest should not be awarded." See Wickham, 955 F.2d at 836. To illustrate, this is not a situation such as that presented in Thomas, 1992 WL 84560, at *3, wherein the court observed that even if it had the discretion to award prejudgment interest, it would not because "plaintiff sustained no economic injury; he was not deprived of money he would have otherwise earned but for the wrongdoing of the defendants." Plaintiff's injuries in Thomas "were, for the most part, intangible and defendants' unconstitutional behavior did not enable them to obtain any financial benefits from their wrongdoing." Id. at *4 (citation omitted). Accord McIntosh v. Irving Trust Co., 873 F. Supp. 872, 882 (S.D.N.Y. 1995) (citations omitted) (refusing to award prejudgment interest under New York CPLR § 5001 for pain and suffering because those damages were "not so easily calculated and represent[ed] the jury's translation into monetary terms of a loss that is difficult to quantify[]" — a loss "not easily divided into specific periods like back pay and [which] does not represent an amount that the defendant has withheld from the plaintiff in the same way that awards in contract or property actions do[]").

Moreover, as the Wickham Court astutely recognized, "while the presence of abstruse inquiries and difficult questions of proof in the calculation of damages are factors to be considered carefully, these problems must be considered together with other factors that may favor prejudgment interest." Wickham, 955 F.2d at 836 (internal quotation marks and citation omitted) (emphasis added). Here, the other Wickham factors discussed to this point favor an award of prejudgment interest. So, while admittedly there is a "degree of speculation" in trying to ascertain the fair rental value of the subject property across a 200 plus year time frame, the court will not rule out a prejudgment interest award on the basis of this factor alone.

Furthermore, the State misses the mark when it focuses upon the purportedly speculative nature of the method by which the jury calculated damages. It is the speculative or conjectural nature of the damages themselves which potentially could impact an award of prejudgment interest — not the method by which those damages were calculated. Finally, as should be evident by now, the court wholeheartedly disagrees with the State that the Wickham factors discussed in the preceding sections weigh in its favor, and thus the purportedly speculative nature of the damages herein should weigh against an award of prejudgment interest. That is not to say, however, that the relative uncertainty of the damages will not enter into this court's calculation of the amount of prejudgment interest due here. It may be that, in taking into account the fairness and relative equities of a prejudgment interest award, the relative uncertainty of the damages, could be a basis, among others, for reducing the amount of any such interest which the court may award in this case.

4. Fairness and Relative Equities

"Considerations of fairness and relative equities" dominated Phase II. See Wickham, 955 F.2d at 834. Here, analysis of this particular Wickham factor has centered on the State's claim that at all relevant times it acted in good faith in its treatment of the Cayuga, and the related claim that the Cayuga delayed in bringing this action. For now the court will focus on the State's claim of good faith which was one of the most significant and contentious issues of Phase II, as is evidenced by the extensive historical proof.

Before considering how the State's good faith or lack thereof impacts the issue of prejudgment interest, there is a need for some clarification. The U.S. insists that in examining the fairness and relative equities, the court should concentrate on the jury award itself. As Wickham makes clear, however, the focus is on the fairness and relative equities of the prejudgment interest award, not the jury award. See Wickham, 955 F.2d at 834. With that in mind, the court will next address the parties' arguments as to what role fairness and relative equities should play in analyzing the prejudgment interest issue.

By arguing that "the State's claim of `good faith' does not affect prejudgment interest[,]" and that "[n]either [that asserted] `good faith' nor `laches' present an obstacle to an award of prejudgment interest in this case," the Cayuga are taking the position that despite Wickham and its progeny, this court should not weigh the relative equities in deciding whether to award such interest. See Cay. Pre-Tr. Memo. at 31. Similarly, the U.S. maintains that "notions of `fairness' and the `equities,' . . . cannot be seen as justification for a . . . decision to deny or limit prejudgment interest on monies historically owing . . ., to the Cayugas." U.S. Pre-Tr. Memo. at 18-19 (citation omitted) (emphasis added). The U.S. further reasons that "assuming, arguendo, that either the State was acting in good faith, or . . . that the Cayugas were less than innocent in all of these proceedings, the propriety for an award of prejudgment interest here would not change." Id. at 18 (citing City of Milwaukee, 515 U.S. 189, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995)) (emphasis added). In other words, the plaintiffs are arguing that regardless of whether or not the State acted in good faith, and regardless of whether or not the Cayuga delayed in bringing this action, they are entitled to an award of prejudgment interest. The court's reading of the relevant case law does not support these arguments.

In arguing that fairness and relative equities have no place in this court's analysis of prejudgment interest, the plaintiffs are effectively arguing that Wickham is no longer good law. In support of that proposition, the plaintiffs heavily rely upon two Supreme Court cases, West Virginia v. United States, 479 U.S. 305, 107 S.Ct. 702, 93 L.Ed.2d 639 (1987), and City of Milwaukee, 515 U.S. 189, 115 S.Ct. 2091, 132 L.Ed.2d 148, which they contend substantially erode the notion of balancing the equities in the context of prejudgment interest.

To be sure, in West Virginia, the Supreme Court did reject the view "that whether [prejudgment] interest had to be paid depended on a balancing of equities between the parties[.]" See West Virginia, 479 U.S. at 311 n. 3, 107 S.Ct. 702. It is likewise true that in City of Milwaukee, the Supreme Court explained that by reading West Virginia "as disapproving of a `balancing of the equities' as a method of deciding whether to allow prejudgment interest[,]" . . ., the Seventh Circuit "deepened an existing Circuit split regarding the criteria for denying prejudgment interest in maritime collision cases." City of Milwaukee, 515 U.S. at 193, 115 S.Ct. 2091 (citations omitted). The Court in City of Milwaukee further explained that prejudgment interest should be awarded in maritime collision cases, "subject to a limited exception, for `peculiar' or `exceptional' circumstances." Id. at 195, 115 S.Ct. 2091 (citations omitted). That limited exception does not include "the existence of a legitimate difference of opinion on the issue of liability" because such a dispute "is merely a characteristic of most ordinary lawsuits!] [i]t is not an extraordinary circumstance that can justify denying prejudgment interest" Id. at 198, 115 S.Ct. 2091 (citation omitted). In holding, inter alia, that a good faith dispute over liability does not justify denying prejudgment interest, and indeed that such a dispute "carries little weight[,]" the Supreme Court reasoned that "[i]f interest were awarded as a penalty for bad-faith conduct of the litigation, the City's argument would be well taken. But prejudgment interest is not awarded as a penalty; it is merely an element of just compensation." Id. at 197, 115 S.Ct. 2091.

This court is fully cognizant of the Supreme Court's rulings in both West Virginia and City of Milwaukee.*fn8 Those two cases are readily distinguishable from the present case. In finding that City of Milwaukee does not govern this court's analysis of prejudgment interest, the court first notes that City of Milwaukee involved a maritime collision where there is a "traditional hospitality to prejudgment interest[.]" See City of Milwaukee, 515 U.S. at 196, 115 S.Ct. 2091. In fact, the observation has been made that "[a]dmiralty courts have long been more sympathetic to the award of prejudgment interest than have the law courts[,]" and "have developed an independent approach to the prejudgment interest problem." See Comment, Prejudgment Interest: Survey and Suggestion, ("Survey"), 77 Nw. U.L.Rev. 192, 193 and 214 (1982) (footnote omitted).

Moreover, the prejudgment interest award in City of Milwaukee was calculated for a mere 18 years between the date of the accident and the entry of judgment. The present land claim litigation is a far cry from a typical admiralty case such as City of Milwaukee. Here, the initial injury occurred in 1795, and hence there is a potential for prejudgment interest spanning over two centuries. Also in sharp contrast to admiralty cases where the time between injury and judgment is relatively short, in this land claim action there is no precedent for remedies, let alone a "traditional hospitality to prejudgment interest[.]" See City of Milwaukee, 515 U.S. at 196, 115 S.Ct. 2091. Given the obvious factual distinctions between City of Milwaukee and the current action, the court does not read that case as broadly as do the Cayuga, i.e., indicating that it is never appropriate for a court to balance the equities in deciding whether or not to award prejudgment interest.

Likewise, West Virginia, 479 U.S. 305, 107 S.Ct. 702, 93 L.Ed.2d 639, is easily distinguishable from the present case. Again, the Court's rejection in West Virginia of a balancing of the equities approach to prejudgment interest was in an entirely different context than here. The issue in West Virginia was whether a state was obligated to pay prejudgment interest to the Federal Government, and the Court held that it was. The propriety of a prejudgment interest award in a dispute between a state and the Federal Government implicate very different policy concerns than those here. In West Virginia, the Court was guided by the fundamental principle that "States have no sovereign immunity as against the Federal Government!j" West Virginia, 479 U.S. at 313, 107 S.Ct. 702. Obviously that policy has no bearing on the present litigation which in its current posture pits the Cayuga and the U.S. against the State of New York.

The temporal relationship between West Virginia and Wickham also militates against a finding that West Virginia governs the issue of prejudgment interest herein. West Virginia preceded the Second Circuit's decision in Wickham by almost exactly five years. Thus, if the Second Circuit deemed West Virginia to have altered the standards by which prejudgment interest should be awarded in this Circuit, surely it would have mentioned that Supreme Court decision in Wickham, but it did not. And although City of Milwaukee was decided several years after Wickham, that does not necessarily mean that the former case undermines the continuing vitality of Wickham. That is especially so given that City of Milwaukee was a maritime collision case and arguably limited to that context. Thus, despite the Cayuga's arguments to the contrary, nothing in either City of Milwaukee or West Virginia persuades this court to abandon its earlier views, as expressed in Cayuga VIII, that fairness and relative equities including the State's asserted good faith are relevant to an analysis of prejudgment interest. See Cayuga VIII, 1999 WL 224615, at *2 ()*21.

In arguing against balancing the equities, time and again the Cayuga harken back to the compensatory nature of prejudgment interest. The court is keenly aware of this aspect of prejudgment interest. See, e.g., Securities and Exchange Commission v. Tome, 638 F. Supp. 638, 640 (S.D.N.Y. 1986), aff'd on other grounds, 833 F.2d 1086 (2d Cir. 1987) (quoting Norte & Co. v. Huffines, 416 F.2d 1189, 1191 (2d Cir. 1969)). The court is equally cognizant, however, that the Second Circuit has recognized more than once, that these "compensatory principles must be tempered by an assessment of the equities." See Lodges 743 and 1746, Etc. v. United Aircraft, 534 F.2d 422, 447 (2d Cir. 1975) (internal quotation marks and citations omitted). Tempering the compensatory nature of prejudgment interest with the equities is critical in this unique lawsuit for a number of reasons, not the least of which is the conclusion of the Cayuga's economist that they are entitled to recover $1.7 billion in prejudgment interest.

To summarize, the court finds no merit in the Cayuga's argument that in deciding whether to award prejudgment interest, the court need not consider the equities. Indeed, considerations of fairness and relative equities will factor into the court's initial determination as to the propriety of awarding the Cayuga prejudgment interest, as well as into the court's calculation of such award, if any.

Even though the court will consider fairness and relative equities, the court does not agree with the State that those equities are "dispositive" and require denying an award of prejudgment interest. See St. Pre-Trial at 35. More specifically, the State contends that its "level of . . . culpability" is a "determinative factor[;]" and because in the State's view there has been no showing of culpable conduct on its part with respect to any aspect of the underlying treaties, the court should deny prejudgment interest altogether to the Cayuga. See id. at 38.

This argument is disingenuous at best. Since its April 15, 1999, decision in Cayuga VIII, the court has stressed that in all likelihood it would be guided by Wickham, which involves not one, but a host of factors, in deciding the availability of prejudgment interest in any given case. Therefore, it should come as no surprise to the State that the court gives no credence to the notion that the level of a party's culpability is somehow dispositive of the issue of whether to award prejudgment interest. Moreover, the thoroughly developed historical record in this case belies the State's assertion that it did not engage in any culpable conduct insofar as the Cayuga are concerned. Even if the State could show that it acted in good faith, that would "not automatically render an award of interest improper." See Association of Surrogates and Supreme Court Reporters Within the City of New York v. State of New York, 772 F. Supp. 1412, 1418 (S.D.N.Y. 1991) (citing E.E.O.C. v. County of Erie, 751 F.2d 79, 81 (2d Cir. 1984)). Consequently, the State's good faith, even if proven, would not be a sufficient basis upon which to bar an award of prejudgment interest especially where, as here, the other Wickham factors tip in favor of such an award.

Having determined that it is not only proper but necessary for the court to consider fairness and relative equities in resolving the issue of prejudgment interest, the court is compelled to comment briefly upon the scope of its equitable discretion. The State is arguing that if this court decides to award prejudgment interest, "[a]n assessment of the relative equities[,]" including the State's alleged good faith, should have some bearing on the court's calculation of that award. See St. Pre-Tr. Memo. at 35 n. 6. The Cayuga disagree, claiming that the "[c]ourt may not use the State's purported good faith to reduce the [amount of] prejudgment interest rightfully due to the[m]." Cay. Post Tr. Memo. at 26. The U.S. similarly maintains that "[t]he [c]ourt lacks discretion to limit prejudgment interest based on the equities." U.S. Pre-Trial Memo. at 17 (emphasis added). The issue thus becomes whether the court may rely on fairness and relative equities in deciding the amount of any prejudgment interest which it may award herein, or whether those factors are only relevant to the decision as to the availability of such an award in the first place.

"[C]ourts have done little to sketch the limits of acceptable discretion[]" when it comes to the issue of prejudgment interest. See Matter of Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1334 (7th Cir. 1992). Keeping in mind that prejudgment interest is above all else an equitable remedy, see Commercial Union Assur. Co., plc v. Milken, 17 F.3d 608, 614 (2d Cir. 1994) (citation omitted), however, the court is of the conviction that its discretion encompasses not only the threshold decision as to whether to allow recovery of prejudgment interest, but also the discretion to determine the amount, which encompasses setting the rate, the accrual date and the methodology for computing such interest.

a. Burden of Proof

There is another issue — the burden of proof — which the court must address before scrutinizing the historical proof which is the cornerstone of the parties' equitable arguments. There are two components to the burden of proof issue here. The first is which party bears the burden in terms of the prejudgment interest award itself. Resolution of that issue is relatively straightforward.

"Prejudgment interest, . . ., is `an element of complete compensation.' Loeffler v. Frank, 486 U.S. 549, 558, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988) (quoting West Virginia, 479 U.S. at 310, 107 S.Ct. 702). As such, this court has previously held that "the Cayugas must shoulder the burden of proof with respect to damages[.]" Cayuga VIII, 1999 WL 224615, at *12. Consistent with the foregoing, the plaintiffs concede, and the State agrees, that they have the burden of establishing "the extent and scope of prejudgment interest[.]" See Plaintiff-Intervener United States' Response to Defendants' Post-Hearing Brief ("U.S.Resp.") at 22; see also St. Post-Tr. Memo. at 62 (citations omitted) ("[A] plaintiff should bear the burden of establishing the existence and breadth of [its] entitlement to prejudgment interest[.]").

That burden does not necessarily require that the Cayuga prove their initial entitlement to a prejudgment interest award. For one reason, prejudgment interest "is presumptively available to victims of federal law violations." Worthington v. City of New Haven, No. 3:94-CV-00609, 1999 WL 958627 (D.Conn. Oct.5, 1999), at *17 (internal quotation marks and citation omitted). Cognizant of this presumption, the court in Maney v. United Sanitation, Inc., No. 99 Civ. 8595, 2000 WL 1191235, at *6 (S.D.N.Y. Aug.21, 2000), exercised its discretion in favor of awarding plaintiff prejudgment interest in an action to confirm an arbitration award pursuant to the LMRA.*fn9 Arguably the Cayuga are presumptively entitled to recover prejudgment interest because this court has previously held that they were subject to Nonintercourse Act violations in 1795 and again in 1807. Second, and even more important even if the Cayuga are not entitled to the benefit of this presumption, arguably at this point they are entitled to an award of prejudgment interest because the three Wickham factors discussed so far all weigh in favor of such an award. As they recognized, however, the burden of proof still remains with the plaintiffs to establish the amount of prejudgment interest to which they may be entitled.

The second and more vigorously disputed burden of proof issue pertains to the State's good faith or lack thereof. As previously noted, the parties' equitable arguments are framed principally in terms of such good faith. The Cayuga assert that in the present case because the State claims that its good faith should relieve it from liability for any prejudgment interest award, or, alternatively, that its good faith should reduce the amount of such an award, the State must prove the same by a preponderance of the evidence. In terms of defining the scope of that good faith burden, without citing to any authority and without defining its terms, the Cayuga are taking the position that the State must prove that it "acted affirmatively in good faith." See Cay. Reply at 23 (emphasis added).

On the other hand, the State contends that to establish their entitlement to prejudgment interest, the Cayuga bear the burden of proof, which according to the State, "includes showing that the State did not act in good faith." See St. Pre-Tr. Memo. at 61; and St. Reply at 7. The court agrees with the Cayuga that because the State's good faith argument is akin to an affirmative defense in that it is responding to the Cayuga's claim for prejudgment interest, see National Union Fire Ins. v. City Say., F.S.B., 28 F.3d 376, 393 (3rd Cir. 1994), the burden lies with the State to prove the same. The court does not agree that the State has an obligation to show that it affirmatively acted in good faith, however.

This good faith/bad faith inquiry falls under the rubric of the second Wickham factor — considerations of fairness and relative equities. There is limited case law expounding upon this particular Wickham factor. Recognizing that an award of prejudgment interest "should be based on fundamental considerations of fairness," the Second Circuit in Norte, 416 F.2d 1189, a derivative stockholders' action, remanded on the issue of prejudgment interest. In so doing, the Second Circuit directed the district court to "make specific findings, . . ., on the personal wrongdoings" of the defendants. Id. at 1191. Consistent with that directive of the Norte Court, the district court in Securities and Exchange Commission v. Tome, 638 F. Supp. 638 (S.D.N.Y. 1986), aff'd on other grounds, 833 F.2d 1086 (2d Cir. 1987), held, inter alia, that the equities did not weigh in favor of the defendant because he "willfully violated the securities laws and thereafter attempted; through lies and deceit, to coverup his role in the illegal activity[.]" Id. at 640 (emphasis added). The court also pointed to the fact that the defendant "remained outside the United States to avoid prosecution on related criminal charges." Id. Likewise, in S.E.C. v. Drexel Burnham Lambert, Inc., 837 F. Supp. 587 (S.D.N Y 1993), aff'd on other grounds, 16 F.3d 520 (2d Cir. 1994), the district court awarded prejudgment interest against two repeat offenders under the securities laws who had participated in a "blatant scheme to defraud," and who had continuously refused to recognize the wrongfulness of their actions. Id. at 609.*fn10 In examining fairness and relative equities, at least in the securities context, courts evaluate a defendant's intent and the nature of the defendant's wrongdoing.

Outside the securities law context a party's intent has also been deemed relevant to an assessment of the fairness and relative equities of a prejudgment interest award. For example, in Cruz, 1995 WL 374401 at *4 (emphasis added), the court granted an award of prejudgment interest because, among other reasons, the "relative equities" supported such an award in that the defendant "Union did not act innocently nor was it unaware of its actions with regard to its failure to fairly represent the plaintiffs." Id. at *4 (emphasis added). In reaching this conclusion, the district court observed that on an earlier appeal "[t]he Second Circuit [had] agreed that the evidence supported the jury's finding that the Union failed, arbitrarily, to pursue the plaintiffs' grievances." Id.

In fact, in Wickham itself the Second Circuit affirmed an award of prejudgment interest where, among other reasons, "there [wa]s no basis in the history of the dispute between Wickham and the union for concluding that the union acted innocently or that the union's actions against Wickham were taken in good faith." Wickham, 955 F.2d at 839 (emphasis added). Furthermore, the Second Circuit reasoned, "[t]here is every indication in this case that the union knew it was clearly violating a specific statutory duty erected by the LMRA." Id. (emphasis added). Beyond this the Court did not elucidate what constitutes good faith for prejudgment interest purposes.

Historical Evidence

"What is history but a fable agreed upon?"*fn11

Napoleon Bonaparte

During Phase II the court heard the testimony of three experts regarding the historical aspects of this land claim litigation: Laurence M. Hauptman, Ph.D., currently a State University of New York ("SUNY") Distinguished Professor of History at SUNY at New Paltz, on behalf of the Cayuga; Peter M. Whiteley, Ph.D., a cultural anthropologist, who is a professor at Sarah Lawrence College, on behalf of the U.S.; and Alexander von Gernet, Ph. D., an ethno-historian who is an assistant, non-tenured professor in the Department of Anthropology at the University of Toronto at Mississauga on behalf ...

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