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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,
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
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.
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)
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
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
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'
DEFENDANTS' MOTION TO DISMISS
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
(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
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
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
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
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
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.
A. Plaintiffs' Standing*fn7
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
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
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
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.
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 ...