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ONEIDA INDIAN NATION OF NEW YORK v. NEW YORK

March 29, 2002

THE ONEIDA INDIAN NATION OF NEW YORK; THE ONEIDA, INDIAN NATION OF WISCONSIN; AND THE ONEIDA OF THE THAMES, PLAINTIFFS, AND UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR, AND THE NEW YORK BROTHERTOWN INDIAN NATION, PLAINTIFF-INTERVENOR,
V.
THE STATE OF NEW YORK; COUNTY OF MADISON, NEW YORK; AND COUNTY OF ONEIDA, NEW YORK, DEFENDANTS.



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

            MEMORANDUM-DECISION AND ORDER

BACKGROUND

I. Factual Background

This action is brought by three Indian nations, the Oneida Indian Nation of New York, the Oneida Indian Nation of Wisconsin and the Oneida of the Thames (collectively, the "Oneidas" or "Plaintiffs"), who claim to be descendants of the original Oneida Indian Nation that inhabited land in what is now central New York State "from time immemorial to shortly after the Revolution." County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 230, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985). The Oneidas bring this action in order to regain possession of approximately 250,000 acres of land in New York State that they claim was unlawfully taken from the Oneida Indian Nation by New York State.

The Oneidas' troubles with New York State, for purposes of this action, began in 1788 with the Treaty of Ft. Schuyler, in which the State purchased the majority of the Oneidas' aboriginal land and left the Oneidas with a reservation of approximately 300,000 acres in central New York State. In 1794, in the Treaty of Canandaigua, the United States recognized that the Oneida Indian Nation had been granted this reservation of land in New York State. In this action, the Oneidas allege that following the Treaties of Ft. Schuyler and Canandaigua, New York State proceeded to illegally purchase for itself the Oneida Indian Nation's reserved land. Specifically, the Oneidas challenge the validity of 30 land transactions entered into by the Oneida Indian Nation and New York State between 1795 and 1846. In these transactions, the original Oneida Indian Nation sold portions of the land reserved to it in the Treaties of Ft. Schuyler and Canandaigua to New York State. The Oneidas' current claim is based on their argument that these transactions are barred by the 1793 Nonintercourse Act, 25 U.S.C. § 177, that prohibits the conveyance of Indian land without the express approval of the federal government.

II. The "Test Case"

In 1970, the Oneidas filed suit in the Northern District of New York against Madison an Oneida Counties (the "Counties") challenging the validity of a 1795 land transaction in which the Oneida Indian Nation sold a large part of its original land reservation to New York State. In this action, titled Oneida Indian Nation of New York v. County of Oneida (the "test case"), the Oneidas sought the fair rental value for a two-year period of portions of the disputed land now occupied by the Counties. The test case was initially dismissed by the district court for lack of federal jurisdiction, and this decision was affirmed by the Second Circuit. See Oneida Indian Nation of New York v. County of Oneida, 464 F.2d 916 (2d Cir. 1972). However, the Supreme Court reversed, finding that the Oneidas' claim asserted a federal controversy because Indian possessory rights to tribal lands are governed by federal law. See Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661, 667, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) ("Oneida I").

The district court judge conducted a bench trial in the test case and found that the 1795 land transfer did violate the Nonintercourse Act. See Oneida Indian Nation of New York v. County of Oneida, 434 F. Supp. 527 (N.D.N.Y. 1977) ("Oneida Test Case"). This ruling was affirmed by the Second Circuit and the Supreme Court. See Oneida Indian Nation of New York v. County of Oneida, 719 F.2d 525 (2d Cir. 1983) ("Oneida Test Case-Circuit"); County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) ("Oneida II").

The test case involved facts and legal theories quite similar to those present in this action. In fact, many of the legal theories and defenses set forth by the parties in this action were discussed extensively by the courts issuing decisions in the test case. The fundamental difference between the two actions lies in their scope. While the test case dealt with only one transaction and a smaller area of land, this action concerns a series of transactions over several years and a much larger area of land. In addition, while the plaintiffs in the test case are identical to Plaintiffs in this action, New York State was not a defendant in the test case, and the United States and the New York Brothertown Indian Nation did not intervene in the test case.

Following Oneida II, the test case was remanded to the district court for further consideration of the Counties' claimed offset against damages. The test case is currently pending in the Northern District of New York before Judge McCurn.

III. Procedural History

This action was filed by Plaintiffs in 1974 against the Counties and essentially lay dormant for many years while the Plaintiffs actively pursued the test case and while the parties engaged in extensive settlement discussions. In 1998, the United States was permitted to intervene as a plaintiff. In September 2000, Judge McCurn permitted Plaintiffs and the United States to amend their Complaints to add New York State as a defendant and the Oneida of the Thames as a plaintiff. In that same decision, Judge McCurn denied Plaintiffs' motion to add private landowners as defendants. In May 2001, this Court permitted the Brothertown Indian Nation to intervene in this action. The Brothertown claim that the Oneidas granted them a portion of the land at issue in this action in a 1774 treaty between the two nations. They further claim that their right to this land was recognized in the 1794 Treaty of Canandaigua. The Brothertown have intervened in this action in order to protect their rights to this parcel of land.

IV. Motions Before The Court

In November 2001, the parties presented oral argument on several motions to the Court. This decision addresses eight of those motions.*fn1 In this decision the Court addresses (1) Defendants' motion to dismiss for nonjoinder of indispensable parties, (2) Plaintiffs' motion to strike Defendants' defenses, (3) the United States' motion to strike Defendants' defenses, (4) Brothertown's motion to strike Defendants' defenses, (5) Plaintiffs' motions to dismiss Defendants' counterclaims, and (6) the United States' motions to dismiss Defendants' counterclaims.

DEFENDANTS' MOTION TO DISMISS

I. Standard

Federal Rule of Civil Procedure 19(a) first requires the Court to determine whether an absent party is necessary to the action. An absent party is necessary and shall be joined in the action if:

(1) in the person's absence complete relief cannot be accorded among those already parties; or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the claimed interest.

Fed.R.Civ.Proc. 19(a).

Defendants contend that the New York Brothertown Indian Nation, the Brothertown Indian Nation of Wisconsin, the Marble Hill Oneida Indians, and the Iroquois Confederacy are all necessary parties to this action. Defendants urge the Court to either compel these parties to join in the action or dismiss the action under Rule 19 for failure to join indispensable parties.

The facts presented to the Court do not support a finding that any of the absent parties are necessary parties under Rule 19(a)(1). The absence of these parties will not result in a denial of complete relief to the parties currently present in this action. See Arkwright-Boston Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d 205, 209 (2d Cir. 1985) (stating that Rule 19(a)(1) does not contemplate relief that might be awarded to the absent party, but only whether the parties already present can be awarded full relief). There is no reason why the current parties cannot be awarded complete relief without the addition of the absent parties.

This leaves the Court to examine Defendants' claims under Rule 19(a)(2) and to determine whether the absent parties in fact claim an interest relating to the subject of this action. If the absent parties do in fact claim an interest in this action, the Court must determine whether deciding this action in their absence would impair their ability to protect that interest or leave Defendants open to the possibility of multiple suits and inconsistent judgments. The Court will analyze Defendants' Rule 19(a)(2) claims separately for each absent party.

II. New York Brothertown Indian Nation

On May 21, 2001, the Court granted the New York Brothertown Indian Nation's motion to intervene in this action. Because the New York Brothertown Indian Nation is a party to this action, Defendants' motion as to it is moot.

III. Brothertown Indian Nation of Wisconsin

The Brothertown Indian Nation of Wisconsin has expressly disavowed any interest in the land involved in this action. The Wisconsin Brothertown have submitted an affidavit stating that their land claim, under the Treaty of Fort Schuyler, is outside of and to the east of the land at issue in this action. Because the Wisconsin Brothertown have specifically disavowed any interest in the land at issue in this action, they are not a necessary party for Rule 19 purposes. See Oneida Indian Nation of New York v. Madison County, 145 F. Supp.2d 268, 270 (N.D.N.Y. 2001) (denying defendants' motion to dismiss for Rule 19 nonjoinder of an indispensable party and finding that the absent party itself is the "best judge of whether it [has] an interest in the subject" of the action); ConnTech Dev. Co. v. University of Conn. Educ. Properties, Inc., 102 F.3d 677, 683 (2d Cir. 1996) ("It is the absent party that must claim an interest for Rule 19(a)(2) purposes.") (citations and internal quotations omitted).*fn2

IV. Marble Hill Oneida Indians

On November 7, 2001, the Marble Hill Oneidas moved to intervene in this action. Through their request for intervention, the Marble Hill Oneidas have indicated that they claim an interest in the land at issue in this action. Therefore, the Court must determine whether this purported interest would be impaired if this suit were to continue in their absence or if it would leave Defendants open to multiple or inconsistent obligations. The Court finds that it would not.

Any interest that the Marble Hill Oneidas might have in this action would not be impaired if the suit continued in their absence. Furthermore, leaving the Marble Hill Oneidas out of this action would not leave Defendants open to multiple or inconsistent obligations. The Marble Hill Oneidas are official members of the Oneida Indian Nation of New York, a Plaintiff in this action. Any interest they might have in this action is identical to that of the New York Oneidas and is represented by the New York Oneidas. See Canadian St. Regis Band v. New York, 573 F. Supp. 1530, 1533 (N.D.N.Y. 1983) (finding that "whatever title the Indians have is in the tribe, and not in the individuals") (citations omitted). It was for this very reason that the Marble Hill Oneidas were denied intervention in the test case by Judge Port. See Oneida Indian Nation of New York v. County of Oneida, 70-CV35, June 17, 1979 Order at 4 (finding that the Oneida Plaintiffs adequately represented the Marble Hill Oneidas' individual interest in the action), aff'd 620 F.2d 285 (2d Cir. 1980). The interests of the Marble Hill Oneidas are fully represented by the tribe of which they are a member, the New York Oneidas. The presence of the Marble Hill Oneidas in this action is therefore not necessary.*fn3

V. Iroquois Confederacy

Defendants contend that the Confederacy has asserted a claim relating to the subject matter of this action. In support of this contention, Defendants cite a statement by the Confederacy asserting that it "is the only legitimate body authorized to conduct land transactions" on behalf of the Six Nations that make up the Confederacy.*fn4 Roberts Aff., Ex. 14. Defendants also quote the Confederacy as stating that the territories of its constituent nations "became Confederacy land" and "must be dealt with legally by the Council of Chiefs of the Confederacy." Roberts Aff., Ex. 16. Plaintiffs argue that the Confederacy has specifically disavowed any interest in the current action and that the statements cited by Defendants are antiquated and irrelevant to this action.

The Court finds that the Confederacy has not in fact claimed an interest in the subject matter of this action or in the action itself. See Zwack v. Kraus Bros. & Co., 93 F. Supp. 963, 966 (S.D.N.Y. 1950) (finding that where the existence of an absent party's interest is disputed, the Court must make an appraisal of the substantiality of such interests). The Defendants' attempt to assert an interest in this action on behalf of the Confederacy is insufficient under Rule 19(a)(2). See ConnTech Dev. Co. v. University of Conn.Educ. Properties, Inc., 102 F.3d 677, 682 (2d Cir. 1996) (stating that it is the absent party that must itself claim an interest under Rule 19(a)(2)).

The Confederacy's conduct with regard to Indian land claim actions stands in direct contradiction to its previous statements as cited by Defendants. The statements cited by Defendants on behalf of the Confederacy were, for the most part, made decades ago and have certainly not been acted upon by the Confederacy in the years since, at least not in the context that confronts the Court in this action.*fn5 Several Indian land claim cases involving the constituent tribes of the Confederacy have proceeded in the federal courts without the Confederacy. See, e.g., Cayuga Indian Nation v. Cuomo, Nos. 80-CV-930 & 80-CV-960 (N.D.N.Y.); Seneca Nation v. New York, 85-CV-411C & 93-CV-0688 (W.D.N.Y.); Canadian v. St. Regis v. New York, 82-CV-783 (N.D.N.Y.). Neither the courts nor the Confederacy itself have ever suggested that the Confederacy's presence was necessary in those actions. Furthermore, the Confederacy has not attempted to intervene in any of these actions in order to assert the purported interests that Defendants ascribe to it.

Since the Confederacy has sought to intervene in cases where it has an interest, its failure to intervene in the many Indian land claim cases involving its constituent nations supports a finding that the Confederacy does not have an interest in those actions, nor in the action before this Court. See Oneida Indian Nation of Wis. v. State of New York, 732 F.2d 261, 265 n. 6 (2d Cir. 1984) (recognizing that the Seneca Nation "has conducted recurrent and successful litigation in its own right in the federal courts, without [Confederacy] participation and with no deference shown to Gayanerakowa [Confederacy law]").

The Confederacy has also submitted an affidavit in this action, specifically indicating that it has no objections to this case going forward in its absence. See Judge Aff., Ex.2. While this affidavit does not specifically state that the Confederacy has no interest in this action, it does contradict the Confederacy's prior statements in other contexts implying that it is the sole arbiter of land claim disputes for its constituent tribes. The Court finds the Confederacy's lack of objection to this action persuasive and consistent with the evidence discussed above indicating that the Confederacy claims no real interest in this action.

In summary, there is no indication, based on the evidence submitted to the Court, that the Confederacy has any real interest in the land at issue in this action. The statements attributed to the Confederacy by the Defendants about the Confederacy's power of government over the Oneidas and its other constituent nations are belied by the Confederacy's own actions and the actions of its constituent nations. The Confederacy's failure to participate in similar Indian land claim actions and its lack of objection to this action are also telling. Because the Confederacy has no real interest in this action, it is not a necessary party under Rule 19.*fn6

PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' AFFIRMATIVE DEFENSES

I. Standard

Motions to strike affirmative defenses under Rule 12(f) of the Federal Rules of Civil Procedure are not generally favored. Despite a general disfavor for motions to strike, courts should grant these motions when the defenses presented are clearly insufficient. Motions to strike have been found to "serve a useful purpose by eliminating insufficient defenses and saving the time which would otherwise be spent in litigating issues that would not affect the outcome of the case." Simon v. Manufacturers Hanover Trust Co., 849 F. Supp. 880, 882 (S.D.N.Y. 1994) (internal citations and quotations omitted). They are to be granted only when "it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015, 106 S.Ct. 3324, 92 L.Ed.2d 731 (1986). In deciding a Rule 12(f) motion, a court "must accept the matters well-pleaded as true and should not consider matters outside the pleadings." County Vanlines, Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 152 (S.D.N.Y. 2002) (internal quotations omitted).

Even when the facts are not in dispute, it is generally accepted by courts of this Circuit that it is not appropriate to decide substantial issues of law on a motion to strike. See Salcer, 744 F.2d at 939. This is particularly true where there has been little or no discovery, as in the present case.

Additionally, in order to grant a motion to strike a defense, the inclusion of the defense must result in prejudice to the plaintiff. See S.E.C. v. Toomey, 866 F. Supp. 719, 722 (S.D.N.Y. 1992). The requirement of prejudice to the plaintiff may be satisfied if the inclusion of the defense would result in increased time and expense of trial, including the possibility of extensive and burdensome discovery. See id. at 722. That element of prejudice is certainly present in this extremely complicated action that has already been pending for well over two decades. See Mohegan v. Connecticut, 528 F. Supp. 1359, 1362 (Conn. 1982) (granting a motion to strike in an "extraordinarily complex" action and concluding that "[t]he legal issues presented by [the] defenses would greatly complicate the pre-trial process" and that "early resolution of defenses that could not possibly prevent recovery by the plaintiff will facilitate the orderly progress of this protracted litigation towards either trial or settlement") (internal quotations omitted).

In this action, Plaintiffs argue that Defendants have asserted several defenses that are insufficient both legally and factually. In all, Plaintiffs challenge the validity of 37 affirmative defenses raised by the State and 32 affirmative defenses raised by the Counties.

II. Defenses

A. Plaintiffs' Standing*fn7

Defendants challenge the Plaintiffs' standing to bring this action. To bring a claim under the Nonintercourse Act, a plaintiff must show that it is or represents an Indian tribe within the meaning of the Act. See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58 (1994). Defendants dispute Plaintiffs' assertion that they are the successors in interest to the original Oneida Indian Nation or to the factions of the Oneida Nation that entered into the land transactions at issue in this action. Plaintiffs contend that their standing has been conclusively determined through government recognition of their tribal status and by the findings of the courts in the test case. Because the test case concerned the same plaintiffs and the same type of claim present in this action, Plaintiffs argue that there are no outstanding factual or legal questions as to their standing to bring this action. Therefore, Plaintiffs argue that Defendants' standing defense should be stricken as legally insufficient.

1. The Test Case

All three Plaintiffs in this action were plaintiffs in the test case, in which Plaintiffs sued the Counties under the Nonintercourse Act, challenging a 1795 land transaction between the Oneida Nation and the State of New York. In the test case, Judge Port explored extensively the tribal status of all three Oneida Plaintiffs. See Oneida Indian Nation of New York v. County of Oneida, 70-CV-35, Transcript of Proceedings on Nov. 12-13, 1975. After a full presentation of evidence from both sides, and after considering the tribal status factors outlined in Mashpee Tribe v. Town of Mashpee, 447 F. Supp. 940 (Mass. 1978), aff'd, 592 F.2d 575 (1st Cir. 1979), Judge Port found that all three tribal plaintiffs, including the Oneida of the Thames, were "direct descendants" of the original Oneida Nation. Oneida Test Case, 434 F. Supp. 527, 538 (N.D.N.Y. 1977). Judge Port's finding was directly acknowledged by the Second Circuit and the Supreme Court in their review of the case. See Oneida Test Case-Circuit, 719 F.2d 525, 539 (2d Cir. 1983) (observing that "[t]he district court found that the three plaintiffs are the direct descendants of the Oneida Indian Nation"); Oneida II, 470 U.S. 226, 230, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (identifying the Oneida plaintiffs as "direct descendants of members of the Oneida Indian Nation").

The acceptance by the courts in the test case of Plaintiffs' standing to sue under the Nonintercourse Act has a significant effect on this action. The material components of Plaintiffs' claims in both actions, the treaties upon which their claims are based, and the statute they alleged was violated are identical. Because the factual and legal issues arising in this action and the test case are nearly identical, the Court cannot see how Plaintiffs could be found to have standing in the test case but somehow not be found to have standing in this action. In fact, Defendants have raised no issues of fact with regard to Plaintiffs' assertions that they are successor tribes to the Oneida Indian Nation or that they currently exist as tribes in their own right. They have instead concentrated their argument on asserting that the determination of Plaintiffs' standing made by the courts in the test case is not applicable to this action. A challenge to Plaintiffs' standing at this point is only possible if there exists some material difference between the two cases that would make this Court's determination of standing different from that of Judge Port.

The one difference between this action and the test case, for purposes of Plaintiffs' standing, is the number of transactions alleged to be in violation of the Nonintercourse Act. In the test case the Oneida Plaintiffs challenged the validity of only one transaction. In this action they challenge the validity of twenty-six different transactions. Defendants contend that Plaintiffs' standing in this action (unlike the test case) requires them to prove their connection to the original Oneida Indian Nation or to factions of the original Oneida Indian Nation at all twenty-six points in time when the disputed land transactions were consummated. The Court rejects this contention. The rights alleged by Plaintiffs in this action do not involve the rights of the individual groups or sects of Oneida Indians that Defendants allege completed the disputed land transactions with the State of New York. The rights alleged by Plaintiffs are rights protected by the Nonintercourse Act for the Oneida Indian Nation and its successors as a whole. Plaintiffs allege that these rights stem not from treaties signed with individual sects or factions of the original Oneida Indian Nation, but from the 1794 Treaty of Canandaigua, which preserved land for the whole of the Oneida Indian Nation. Indeed, the United States government, in later dealings with the Oneidas, treated the Oneidas as one nation.*fn8 See Treaty of Buffalo Creek, Jan. 15, 1838, U.S.-New York Indians, art. 2, 7 Stat. 550. The claims asserted by Plaintiffs are matters of collective tribal ownership. It would defy logic to force the Plaintiffs in this action to trace their lineage back to individual members or factions of the original Oneida Nation at particular points in time when Plaintiffs' claim concerns rights granted to the Oneida Indian Nation as a whole and is based on a statute granting protection to entire Indian nations.

Because there is no material difference for purposes of standing between this case and the test case, the Court will give significant weight to the determination by Judge Port that Plaintiffs are direct descendants of the original Oneida Indian Nation.

2. Federal Recognition

There is no dispute among the parties that both the New York Oneidas and the Wisconsin Oneidas are federally recognized tribes. The Bureau of Indian Affairs ("BIA") began a formal program of tribal recognition in 1978. Through this program, the BIA makes a determination, based on the modern Indian tribe's history and lineage, as to whether the modern tribe is indeed a successor in interest to an ancient Indian tribe. The New York and Wisconsin Oneidas are considered by the United States government to be successors in interest to the original Oneida Indian Nation.

Courts have consistently found that recognition of a tribe by the United States government is to be given substantial weight in determining an Indian plaintiffs tribal status for Nonintercourse Act claims. See, e.g., Cayuga Indian Nation v. Cuomo, 667 F. Supp. 938, 942 (N.D.N.Y. 1987) (finding that federal recognition of tribal status is to be accorded "great significance" in determining standing under the Nonintercourse Act); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582 (1st Cir. 1979) (acknowledging that courts have generally been able to accept tribal status as a given on the basis of the doctrine that the courts will accord substantial weight to federal recognition of a tribe); see also Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 60 (2d Cir. 1994) ("[T]he BIA is better qualified by virtue of its knowledge and experience to determine at the outset whether Golden Hill meets the criteria for tribal status. This is a question at the heart of the task assigned by Congress to the BIA and should be answered in the first instance by that agency.").*fn9 In Cayuga v. Cuomo, the court gave great deference to the government's recognition of the tribal plaintiff's and found it unnecessary to consider the factors applied in Mashpee, 592 F.2d at 582, since the Cayuga plaintiffs, unlike the Mashpee plaintiffs, were federally recognized tribes. See Cayuga, 667 F. Supp. at 943. The Cayuga court concluded that based on the explicit federal recognition of the Plaintiff tribes as successors in interest to the original Cayuga Indian Nation, it had "little hesitation in holding that there is no genuine issue of material fact regarding [their] tribal status." Id. The Court finds the reasoning of the court in Cayuga v. Cuomo to be applicable to this action.

3. The Mashpee Case

Defendants contend that the Court should apply the factors outlined in Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979), and require Plaintiffs to prove their continuous tribal existence by showing that the Oneida Indian Nation existed as a tribe at the time of each land transaction at issue in this action. In support of this contention, Defendants have asked the Court to take judicial notice of several statements concerning the Oneida Indian Nation's tribal existence, one by a court in 1877 and the others by assorted federal bureaus in the late nineteenth and early twentieth centuries. These statements include a citation to the 1892 census, which Defendants note contains no map of the Oneida reservation, a 1906 report from the Department of the Interior stating that the New York Oneida "can hardly be said to maintain a tribal existence," and a quotation from a book about the Wisconsin Oneida in which is chronicled the Wisconsin Oneidas' loss of land and governing power to white society.*fn10 Defs. Br. at 21-22; Schraver Aff., Exs. 2-5, 8-9.

Even if the Court were to take judicial notice of these statements, they would have no effect on Plaintiffs' standing in this action. There is no need to require Plaintiffs to prove their tribal existence at the time of each relevant land transaction, as required in Mashpee, because unlike the Mashpee plaintiffs, two of the Oneida Plaintiffs have been federally recognized and the standing of all three Plaintiffs to bring a claim under the Nonintercourse Act has been accepted by previous courts.*fn11 The Mashpee plaintiffs were a United States based tribe who were not recognized by the United States government. They had not previously brought a claim in which their standing and tribal status had been explicitly recognized. The Mashpee court was therefore forced to consider other evidence of tribal status to determine the plaintiffs' standing. This is not analogous to the situation facing this Court. In a case like this one, where the Plaintiffs' standing under the Nonintercourse Act has been accepted in a previous action and in which two of the Plaintiff tribes are federally recognized, Plaintiffs have standing as a matter of law.*fn12

The facts outlined in the pleadings and the law governing standing in Indian land claim actions do not support a defense challenging Plaintiffs' standing in this action. In addition, the prejudice that would result to Plaintiffs by forcing them to respond to burdensome discovery requests on an issue which is not legitimately in dispute argues in favor of striking the defense. Defendants' standing defenses are therefore stricken.

B. Disestablishment, Diminishment and Ft. Schuyler*fn13

These defenses are discussed below as part of the Court's discussion of Plaintiffs' and the United States' motions to dismiss Defendants' counterclaims. See discussion infra p. 130, Part II. In accordance with that discussion, Defendants' disestablishment and diminishment defenses remain and the Ft. Schuyler defense is stricken.

C. Ratification and U.S. Consent*fn14

Defendants contend that ratification of the land transactions at issue in this action can come from a number of federal sources and that Plaintiffs are required under the Nonintercourse Act to prove that the United States never consented to the alienation of their land. Plaintiffs counter that ratification of the disputed land transactions must be by federal statute or treaty, and that Defendants' failure to plead the existence of any such statute or treaty causes their ratification defenses to fail.

While the law is clear that congressional intent to terminate title to Indian land must be plain and unambiguous, see Oneida II, 470 U.S. at 247, it is far from clear that ratification of Indian land transactions must necessarily be by treaty or statute. See, e.g., Seneca Nation of Indians v. State of New York, 26 F. Supp.2d 555, 571 (W.D.N.Y. 1998) (finding that federal ratification of an Indian land transaction must be explicit but not necessarily by federal treaty or statute); Oneida Test Case — Circuit, 719 F.2d at 539 (same); Cayuga Indian Nation of New York v. Cuomo, 667 F. Supp. 938, 94445 (N.D.N.Y. 1987) (same). In Cayuga v. Cuomo, the court found that a complete factual record of the land transactions at issue was necessary prior to a determination of whether the land transactions had indeed been ratified by the federal government.*fn15 Cayuga v. Cuomo, 667 F. Supp. at 944-45. In light of the uncertainty of the law in this area and the lack of facts before the Court supporting either party's position, substantial issues of law and fact relating to this issue remain unresolved. It would therefore be inappropriate to strike the Defendants' ratification defenses at this time.

D. Adequacy of Consideration, Estoppel, Estoppel by Sale, Bona Fide Purchaser and Payment*fn16

Defendants contend that the equitable remedies of adequacy of consideration, estoppel, estoppel by sale, bona fide purchaser, and payment are available to them under federal law. Plaintiffs contend that if Defendants are found to have violated the Nonintercourse Act, these defenses are not available because under the ...


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