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CANADIAN ST. REGIS BAND v. STATE

July 28, 2003

THE CANADIAN ST. REGIS BAND OF MOHAWK INDIANS BY LAWRENCE FRANCIS, CHIEF, AND LLOYD BENEDICT, MIKE MITCHELL, BRUCE ROUNDPOINT, JOE JACOBS, JOHN OAKES, ANGUS BONAPARTE, JR., DAVID BENEDICT, JOYCE SHAROW, ROBERT SUNDAY, WILLIAM SUNDAY AND JOHN LAZORE, COUNCIL MEMBERS, PLAINTIFFS, AND ST. REGIS MOHAWK TRIBE, BY THE ST. REGIS MOHAWK TRIBAL COUNCIL, THE PEOPLE OF THE LONGHOUSE AT AKWAESASNE BY THE MOHAWK NATION, CONSOLIDATED PLAINTIFFS, THE UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR,
v.
THE STATE OF NEW YORK, GEORGE E. PATAKI, AS GOVERNOR OF THE STATE OF NEW YORK, THE COUNTY OF ST. LAWRENCE, NEW YORK, THE COUNTY OF FRANKLIN, NEW YORK, THE VILLAGE OF MASSENA, NEW YORK, THE TOWN OF MASSENA, NEW YORK, THE TOWN OF BOMBAY, NEW YORK, THE TOWN AND VILLAGE OF FORT COVINGTON, NEW YORK, FARMERS NATIONAL BANK, N/K/A KEY BANK OF NORTHERN NEW YORK, N.A., NATIONWIDE MUTUAL INSURANCE CO., NIAGARA MOHAWK POWER CORPORATION, MARINE MIDLAND PROPERTIES CORP., WALSH REALTY CORP., AND CANADIAN NATIONAL RAILWAYS, DEFENDANTS. THE ST. REGIS MOHAWK TRIBE, BY THE ST. REGIS MOHAWK TRIBAL COUNCIL AND THE PEOPLE OF THE LONGHOUSE AT AKWESASNE, BY THE MOHAWK NATION COUNCIL OF CHIEFS, PLAINTIFFS, THE UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR, V. THE STATE OF NEW YORK, GEORGE E. PATAKI, AS GOVERNOR; COUNTY OF ST. LAWRENCE; COUNTY OF FRANKLIN; VILLAGE OF MASSENA; TOWN OF MASSENA; TOWN OF BOMBAY; TOWN AND VILLAGE OF FORT COVINGTON; KEY BANK OF NORTHERN NEW YORK, N.A.; NATIONWIDE MUTUAL INSURANCE CO.; NIAGARA MOHAWK POWER CO.; CANADIAN NATIONAL RAILWAYS; POWER AUTHORITY OF THE STATE OF NEW YORK; WILLIAM J. BROCKWAY; LORETTA BROCKWAY; JAMES CHAPMAN; MARY CHAPMAN; ROBERT CHAPMAN; BURTON CHAPMAN; PAUL COMPEAU; CATHERINE COMPEAU; REAL C. COUPAL; THELMA B. COUPAL; HARRY GROW; LAURENT HEBERT; VINCENT JERRY; DANIEL JERRY; ERNEST L. JOCK; CARRIE JOCK; ALPHA LATRAY; DUANE STEWART; KAY STEWART; THOMAS TORREY; AND EVERSUSLAWE TORREY, DEFENDANTS. THE CANADIAN ST. REGIS BAND OF MOHAWK INDIANS BY LAWRENCE FRANCIS, CHIEF, AND LLOYD BENEDICT, MIKE MITCHELL, BRUCE ROUNDPOINT, JOE JACOBS, JOHN OAKES, ANGUS BONAPARTE, JR., DAVID BENEDICT, JOYCE SHAROW, ROBERT SUNDAY, WILLIAM SUNDAY AND JOHN LAZORE, COUNCIL MEMBERS, PLAINTIFFS, THE UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR, V. THE STATE OF NEW YORK, GEORGE E. PATAKI AS GOVERNOR OF THE STATE OF NEW YORK, ST. LAWRENCE SEAWAY DEVELOPMENT CORP., DAVID W. OBERLIN, ADMINISTRATOR, ST. LAWRENCE SEAWAY DEVELOPMENT CORP., NIAGARA MOHAWK POWER CO., AND POWER AUTHORITY OF THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCURN, Senior District Judge.

MEMORANDUM-DECISION AND ORDER

"This is deja vu all over again." Those immortal words, attributed to the former New York Yankee great and Hall of Fame catcher Lawrence Peter "Yogi" Berra,*fn2 come readily to mind here. The arguments which the parties are raising have a strangely familiar ring to them. Indeed, all of the affirmative defenses and all of the counterclaims being challenged on these motions have already been considered either over two years ago in this action, see Canadian St. Regis Band of Mohawk Indians v. New York, 146 F. Supp.2d 170 (N.D.N.Y. 2001) ("St. Regis IV"), or in other land claim litigation before this and other federal district and appellate courts.

INTRODUCTION

Currently pending before the court are two separate but related sets of motions. Broadly stated, in the first set of motions the plaintiffs*fn3 are seeking to strike numerous affirmative defenses, while in the second the Tribes and the United States as plaintiff-intervenor,*fn4 are seeking to dismiss certain counterclaims.*fn5

BACKGROUND

I. St. Regis IV

Much of the extensive background of this case was recounted in St. Regis IV, 146 F. Supp.2d at 174-77. The interplay between St. Regis IV and the current motions warrants a brief overview of that case though, as well as what has transpired in the interim.

From the outset the history of this lawsuit can best be described as a series of fits and starts, as to both settlement efforts and motion practice. Despite initial motion filings in late 1989, because of sporadic and ultimately futile negotiation efforts, along with the evolving state of Indian land claim law, not until May 30, 2001 did the court issue its first substantive decision in this case. At that time the court made several rulings which are germane here. First, it denied the State's and the Power Authority's motion to dismiss based on Eleventh Amendment immunity. See id. at 180-81. Next, the court rejected the defendants' argument that the Canadian Band and the People of the Longhouse lacked standing, because supposedly they do not have the requisite tribal status to bring claims under the Nonintercourse Act, 25 U.S.C. § 177 (West 2001) ("NIA"). See id. at 181-85. Third, the court rejected defendants' argument that the equitable doctrine of laches bars the Tribes' and the U.S.' claims. See id. at 186.

Since St. Regis IV, there has been no significant change in the status of this action. No discovery has yet been conducted. Nonetheless, almost exactly two years after St. Regis IV, a second round of substantive motions is now before the court. Although all motion papers were filed by October 31, 2002, with oral argument scheduled for December 19, 2002, just ten days prior to that the Second Circuit issued Thompson v. County of Franklin, 314 F.3d 79 (2d Cir. 2002) ("Thompson II"). Thompson II prompted several parties to request an opportunity to provide supplemental briefing as to the impact, if any, of that decision upon the pending motions. Granting that request, the court allowed the parties to file such briefs no later than February 14, 2003; that has now been done. Given the voluminous and thorough briefing, the court did not deem oral argument necessary, however.

II. Thompson II

In Thompson II the Court found that plaintiff's land, which she claimed was part of the St. Regis Mohawk Indian Reservation, but upon which there were no restrictions on alienation, was subject to the defendant County's ad valorem tax. Thompson II resulted in three separate opinions. Senior Circuit Judge Van Graafeiland wrote the affirming opinion, with Judge Winter concurring in a separate opinion; and Judge Sack dissenting in another separate opinion.

Several of the parties are urging that despite the fractured decision in Thompson II, this court should rely at least in part upon that decision to strike some of the affirmative defenses being challenged herein. The court sees no reason to do that, however, because as will soon become apparent, there is ample relevant case law without needlessly trying to discern the import of Thompson II. Moreover, as the Canadian Band and People of the Longhouse accurately state, "Thomspon [II] does not deal directly with any of the defendants' legal defenses or counterclaims." Memorandum on Impact of Thompson Case Submitted by Plaintiffs Mohawk Council of Akwesasne and Mohawk Nation Council of Chiefs at ¶ 2 (emphasis added). Likewise, the State's observation regarding Thompson II vis-a-vis the pending motions is accurate: "The Thompson opinions do not squarely address let alone decide the validity of the tribal plaintiffs' claims to the lands and islands at issue in the St. Regis cases." Letter of David B. Roberts to Court (Feb. 13, 2003) at 1. As soon will be readily apparent, the pending motions raise enough issues on their own without becoming sidetracked with Thompson II.

III. Overview of Arguments

The Tribes*fn6 are seeking to strike the following defenses: (1) laches; (2) Eleventh Amendment; (3) standing of St. Regis; (4) abatement; (5) statute of limitations; (6) estoppel; (7) adverse possession; (8) mitigation; (9) lost title; (10) accord and satisfaction; (11) unclean hands; (12) estoppel by sale; (13) waiver; (14) lack of notice; (15) abandonment; (16) release; (17) relinquishment; (18) State title; (19) exhaustion of remedies; (20) indispensable party; (21) offset or setoff; (22) defense based on Treaty of Buffalo Creek; and (23) diminishment and disestablishment. Of those defenses, defendants do not oppose striking these four: (1) abatement; (2) adverse possession;*fn7(3) lost grant;*fn8 and (4) lack of notice. See Defendants' Joint Memorandum of Law in Opposition to Plaintiffs' Motion to Strike Defenses ("Def. Memo.") at 21; 22; and 28. Accordingly, the court strikes the same. The parties continue to dispute the validity of the other remaining defenses.

Before delving into an analysis of each of the 19 affirmative defenses still at issue herein, however, the court will offer an overview of the parties' arguments. Allowing those defenses to stand would allegedly prejudice plaintiffs in two ways. First, prejudice would occur because many of the issues which these affirmative defenses raise have been previously resolved in the Tribes' favor and against the defendants in this and other land claim litigation. Consequently, relitigating these defenses would "create unnecessary expense and delay." See Mohawk Plaintiffs' Memorandum in Support of Motion to Strike Affirmative Defenses ("Pl. Memo.") at 3. The Tribes also claim that prejudice would arise because they anticipate "be[ing] forced to respond to discovery requests far in excess of those warranted by the viable issues remaining[,]" even if the court grants their motion to strike. See id.

Defendants' response can best be summarized in their own words: "Prudence dictates denying the Trib[es'] . . . pre-emptive Motion to Strike . . . prior to the completion of any discovery." Def. Memo. at 9. Further, defendants stress that it would be "premature" to grant the Tribes' motion to strike because there are "numerous significant and unique factual . . . issues[,]" as well as "novel legal issues[.]" See id. at 1. Finally, defendants assert that the Tribes' "bald assertions of prejudice" are simply insufficient to warrant striking defendants' affirmative defenses. Id. at 7.

Defendants identify three allegedly "unique factual issues" which supposedly preclude granting any aspect of this motion to strike: (1) the status of the land at issue, i.e. aboriginal or recognized; (2) the Tribes' status under the NIA, as well as the basis for its claims thereunder, such as "the circumstances surrounding the execution of the 1796 Treaty with the Seven Nations of Canada ["the 1796 Treaty"][,]"; and (3) "whether the St. Regis or their predecessors were even parties to [the Treaty of Fort Stanwix, the Treaty of Fort Harmar and the Treaty of Canandaigua][.]" Id. at 4 and 5.

Likewise, defendants identify three legal issues which they contend provide another reason for denying this motion to strike. Arguing that "aboriginal title" is essential to an NIA claim, the defendants contend that the NIA does not apply here because the Tribes do not have such title. Instead, the defendants maintain, because the Tribes are seeking to "enforce rights . . . created, if at all, in a private land purchase agreement between the State . . . and a private individual[.]" See id. at 6. That scenario, according to defendants, raises "a significant legal question [as to] the applicability of the [NIA]" here. Id.

Turning next to potential legal issues, which according to defendants would bar plaintiff relief, evidently there are no reported cases applying the Nonintercourse Act ("NIA") in a case such as this; i.e. where, at least according to the defendants, the subject land involved a "private land purchase . . . between the State . . . and a private individual[]" — an agreement to which the defendants maintain the "Indians of the Village of St. Regis were merely third-party beneficiaries[.]" Id. at 6 (emphasis added). Thus, again relying upon the purported lack of aboriginal title, an element which defendants believe is crucial to the applicability of the NIA, they argue that there is a "significant legal question" as to whether or not the Tribes have properly invoked the NIA. Id.

DISCUSSION

Motion to Strike Affirmative Defenses*fn9

I. Rule 12(f) Standard

The oft-repeated legal standards to be applied in resolving a Rule 12(f) motion to strike are straightforward and well-settled. The parties agree as to the governing legal standard, but they strongly disagree as to the outcome. Among other things, pursuant to Fed.R.Civ.P. 12(f), a "court may order stricken from any pleading any insufficient defense[.]" Typically courts do not look favorably upon motions to strike. See, e.g., Oneida Indian Nation of New York v. New York, 194 F. Supp.2d 104, 117 (N.D.N.Y. 2002) (Kahn, J.).*fn10 That does not mean that such motions are never granted, however. Motions to strike "are to be granted [, but] 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.'" Id. (quoting Salcer, 744 F.2d at 939) (emphasis added). In other words, courts should grant these motions when the defenses presented are clearly insufficient." Id. (emphasis added). However, when there "has been no significant discovery[,]" courts are [even] more reluctant to grant a motion to strike an affirmative defense. See id.

By the same token, though, "even when the facts are not disputed, several courts have noted that a motion to strike for insufficiency was never intended to furnish an opportunity for the determination of disputed and substantial questions of law." Salcer, 744 F.2d at 939 (internal quotation marks and citations omitted) (emphasis added). A legal issue is "substantial and disputed" when, for example, "courts considering the question have reached differing conclusions[,]" resulting in "confus[ing] and unsettled" law on a given point. See id. (citations omitted). Conversely, "[c]lose or new questions of law should not be resolved on a motion to strike[.]" Mohegan Tribe v. State of Conn., 528 F. Supp. 1359, 1362 (D.Conn. 1982) (emphasis added). Otherwise, as the Second Circuit pointed out in Salcer, courts would "run the risk of offering an advisory opinion on an abstract and hypothetical set of facts." Salcer, 744 F.2d at 939 (citations omitted).

Additionally, before striking an affirmative defense there must be a showing that its "inclusion . . . [will] result in prejudice to the plaintiff." Oneida Reservation, 194 F. Supp. at 117 (citing 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[,]" id. (citation omitted) (emphasis added), such as when the discovery "could take many months." See Toomey, 866 F. Supp. at 722 (internal quotation marks and citation omitted). On the other hand, "prejudice is not assumed simply by the inclusion in the amended complaint of the verbose, immaterial, conclusory, or evidentiary matter[.]" County Vanlines v. Experian Information Solutions, 205 F.R.D. 148, 153 (S.D.N.Y. 2002) (internal quotation marks and citation omitted). In short to prevail on this motion to strike, as the moving parties the Tribes have the burden of showing the absence of factual questions; the absence of substantial questions of law, see Carter-Wallace, Inc. v. Riverton Laboratories, Inc., 47 F.R.D. 366, 368 (S.D.N.Y. 1969); and that they will be prejudiced by the inclusion of the affirmative defenses which they are seeking to strike. See County Vanlines, 205 F.R.D. at 153 (citation omitted).

II. Affirmative Defenses

In addressing the viability of the 19 remaining defenses which the Tribes are seeking to strike, for analysis purposes the court will group these defenses according to common legal theories and arguments.

A. Standing

"Whether a claimant has standing is the threshold question in every federal case, determining the power of the court to entertain the suit." Fair Housing In Huntington v. Town of Huntington, 316 F.3d 357, 361 (2d Cir. 2003) (internal quotation marks and citation omitted); see also Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir. 1994) (recognizing "jurisdictional nature of the standing inquiry"); and First Capital Asset Management v. Brickellbush, 218 F. Supp.2d 369, 377 (S.D.N.Y. 2002) (addressing standing argument first because it implicated court's subject matter jurisdiction). Consequently, although not the first defense being challenged on this motion to strike, the court will address standing first.

This is not the first time the standing issue has arisen in this litigation. Slightly more than two years ago, in St. Regis IV, the court denied a defense motion to dismiss for lack of standing directed at two of the plaintiffs, the Canadian Band and the Longhouse. See St. Regis IV, 146 F. Supp.2d at 181-85. The court presumes familiarity with that decision.

Only after that defeat did the defendants challenge the standing of the St. Regis Mohawk Tribe and the St. Regis Mohawk Tribal Council ("the Council").*fn11 On August 13, 2001, approximately two and a half months after St. Regis IV, the defendants filed amended answers. In their amended answers in Main Land II, for the first time, the State and the Power Authority alleged lack of standing as an affirmative defense as against the Tribe and the Council.

"[T]o establish a violation of the [NIA], a plaintiff must show that: (1) it is an Indian nation or tribe; (2) the land at issue was tribal land at the time of the alleged violation; (3) the [U.S.] has never consented to or approved alienation of this tribal land as required by the Act; and (4) the trust relationship between the [U.S.] and the Indian nation or tribe has not been terminated or abandoned." Seneca Nation of Indians v. New York, 206 F. Supp.2d 448, 502 (W.D.N.Y. 2002) (emphasis added) (citing, inter alia, Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 56 (2d Cir. 1994)). In challenging the St. Regis' standing, the defendants' focus is very narrow; at least at this point it is only disputing the St. Regis' ability to satisfy the first factor. Evidently at least for purposes of this motion, defendants concede that in all other respects the St. Regis has sufficiently pled an NIA violation. The court makes that same assumption.

The NIA does not define "Indian nation" or "tribe of Indians" for purposes of that Act. See First American Casino v. Eastern Pequot Nation, 175 F. Supp.2d 205, 211 n. 9 (D.Conn. 2000). In the past 30 years or so that issue has engendered a fair amount of litigation particularly in Northeastern land claim cases. Indeed, as more fully discussed below, not only has this court previously addressed tribal status under the NIA, but it has addressed nearly the exact same arguments which the parties are advancing herein. In this way, analysis of the standing issue exemplifies all too well the court's initial observation that this motion is "deja vu all over again."

Before addressing the merits of the tribal status issue, there are two procedural issues — both going to the scope of this motion — which the court must briefly address. The first issue is exactly which plaintiff is seeking to strike standing as an affirmative defense. The second issue pertains to the scope of the record.

As to the parties involved, the scope of the Tribe's motion to strike standing is more narrow than it first appears. As the court reads the State's amended answer in Main Land II, the State disputes the standing of the St. Regis Tribe and the Council. See St. An. (89-CV-829) at 2, ¶ 5. In moving to strike standing, however, the Tribe focuses solely on its own standing and only mentions the Council once in passing.*fn12 In their opposition memorandum the defendants do not mention the Council at all. Moreover, the Power Authority is not disputing the Council's standing; only the State is. Consistent with the foregoing, the court will confine its standing analysis to the Tribe.

To bolster its assertion of federal recognition, the Tribe is relying upon the "affidavit" of M. Sharon Blackwell, Deputy Commissioner of the Bureau of Indian Affairs ("BIA"), wherein she addresses the tribal status of the St. Regis. See Walker Aff'm, exh. A thereto at (M. Sharon Blackwell Affidavit (June 14, 2002) at ¶¶ 2-4).*fn13 Reciting the general rule that"[i]n deciding a Rule 12(f) motion, a court must accept the matters well-pleaded as true and should not consider matters outside the pleadings[,]" Oneida Reservation, 194 F. Supp.2d at 117 (internal quotation marks and citation omitted), the defendants are urging the court to ignore Ms. Blackwell's declaration. Otherwise they want to conduct discovery as to the assertions therein, including "the basis for the federal government's recognition of the St. Regis." See Def. Memo. at 19, n. 4; and at 20, n. 7.

At this juncture, the part of the Blackwell declaration which seems most relevant is the statement that the Federal Register lists the St. Regis as a "recognized Indian tribe[.]" See Blackwell Aff. at ¶ 6. It is not necessary for the court to look to the Blackwell declaration to find support for that proposition, however. That is so because on a motion to strike, "[a] court may also consider matters of which judicial notice may be taken under FED. R. EVID. 201[.]" County Vanlines, 205 F.R.D. at 152 (citation omitted). Among the items of which judicial notice may be taken is the Federal Register. See Yale-New Haven Hosp., Inc. v. Thompson, 198 F. Supp.2d 183 (D.Conn. 2002). Thus because the court can take judicial notice of the Federal Register and the St. Regis' listing therein, it need not consider the Blackwell declaration.

Turning next to the relative merits of the parties' standing arguments, defendants adopt a strategy which they turn to time and again in opposing this motion to strike. They assert that factual issues and questions of law "predominate[,]" thus rendering it improper to strike standing as an affirmative defense. See Def. Memo. at 18. Defendants are unsuccessful in their attempt to create factual issues and to show a "disputed and substantial" question of law, however.

The St. Regis is arguing that it is a "nation or tribe" within the meaning of the NIA because (1) it is federally recognized by the U.S. government; and (2) it is "a recognized successor in interest to the beneficiaries of the 1796 Treaty[.]" Tr. Memo. at 4-5. Countering that federal recognition is not dispositive of NIA standing, the defendants posit that continuity of tribal existence is essential to NIA standing. More specifically, defendants contend that the St. Regis must show "tribal status at all relevant times in the litigation, from the date of enactment of the [NIA] through the dates of various transactions up to the present." Def. Memo. at 18-19 (emphasis added) (citing Mashpee Tribe v. New Seabury Corporation, 592 F.2d 575 (1st Cir. 1979)).

In weighing those conflicting views, Cayuga Indian Nation of New York v. Cuomo, 667 F. Supp. 938 (N.D.N.Y. 1987) ("Cayuga III"), is particularly instructive because this court was faced with arguments nearly identical to those just set forth. The plaintiffs argued, as the Tribe does now, that because "they [we]re recognized as Indian tribes by the federal government and . . . the federal government . . . had a continuous relationship with them for a great number of years[,]" they met the tribal status element necessary to pursue an NIA violation. Id. at 941-42. Also as in the present case, and also based upon Mashpee, the Cayuga III defendants argued that "federal recognition is insufficient to establish tribal status for the purposes of a[n] [NIA] claim and . . . the plaintiffs must prove that they have had a continuous tribal existence since the time of the challenged conveyances to the present time." Id. at 942 (emphasis added).

Rejecting that argument, this court distinguished Mashpee because "the Mashpees and four other `tribes' involved in that litigation [were] not on the [federal government] list [of recognized Indian tribes[,]" whereas "the Cayuga Nation of New York and the Seneca-Cayuga tribe of Oklahoma" are on that list. See id. at 943 (citing 51 Fed. Reg. 25115 (July 10, 1986)). Then, after analyzing the law regarding tribal status under the NIA, this court opined that "even if [it] [was] not bound by federal government recognition of a tribe, such recognition should be given great weight in any determination of tribal status." Id. at 943 (emphasis added). Consequently, "[n]otwithstanding the defendants' protests and presentation to the court of `questions of material fact' on the issue of tribal status, the court ha[d] little hesitation in holding that there [wa]s no genuine issue of material fact regarding the tribal status of either of the plaintiffs[]" in Cayuga III. Id.

More recently, in Oneida Reservation the court also refused to accept the defense argument that a plaintiff must prove continuous tribal existence at the time of each challenged conveyance in order to show that it is a tribe within the meaning of the NIA. See Oneida Reservation, 194 F. Supp.2d at 119-21. Citing Cayuga III among other cases, Judge Kahn accurately stated that "[c]ourts have consistently found that recognition of a tribe by the [U.S.] government is to be given substantial weight in determining an Indian plaintiff's tribal status for [NIA] claims." Id. at 119-120 (citing cases) (emphasis added). Relying partially upon that reasoning, in Oneida Reservation the court held that the plaintiffs had "standing as a matter of law[]" under the NIA. See id. at 121 (footnote omitted). In the face of that contradictory case law, defendants persist in arguing that the St. Regis must show continuing tribal existence to constitute an "Indian nation" or "tribe of Indians" as those terms are used in the NIA. Defendants' argument is unavailing given the case law referenced above wherein courts, including this one, have uniformly rejected the notion of continuing tribal existence as a prerequisite to satisfying that element of an NIA claim. Simply put, in light of the case law outlined above, defendants are unable to show that there are "disputed and substantial questions of law" pertaining to that issue. See Salcer, 744.2d at 939.

Likewise, try as they might, defendants have not shown that there are factual issues precluding the court from granting the Tribe's motion to strike the standing defense. Accepting as it must "all facts averred by the [Tribe] . . . as true for purposes of the standing inquiry[,]" Center for Reproductive Law and Policy v. Bush, 304 F.3d 183, 192 (2d Cir. 2002) (internal quotation marks and citation omitted), the court finds that the St. Regis constitutes a federally recognized tribe under the NIA. The St. Regis avers that it "is an American Indian tribe recognized by the Secretary of the Interior of the [U.S.][;]" and that it is "an `Indian nation or tribe of Indians' within meaning of the [NIA.]" See Co. (89-CV-829) at 3, ¶ 5. Of equal if not more import though is the fact that the State and the Power Authority unequivocally "ADMIT" that the Tribe is federally recognized. See St. An. (89-CV-829) at 2, ¶ 5; Power Auth. An. (89-CV-829) at ¶ 3. That "key admission," as the Tribe puts it, see Tr. Reply at 3, is in keeping with the State's answer which does not contain an averment that the Tribe lacks federal recognition. Further, those "key admission[s]" reinforce defendants' earlier postion in St. Regis IV "that the federally recognized St. Regis Tribe c[ould] adequately represent the interests of all three plaintiff tribes[.]" See St. Regis IV, 146 F. Supp.2d at 181 (emphasis added).

In addition to those pleadings, as Fed.R.Evid. 201(b) allows, the court takes judicial notice of that portion of the Federal Register wherein the "St. Regis Band of Mohawk Indians of New York" is "list[ed]" and "recognized" as "eligible for funding and services from the [BIA] by virtue of [its] status as [an] Indian tribe[]." See 60 Fed. Reg. 13298 (March 13, 2001) (emphasis added). To summarize, the Tribe's allegations that it is "a group intended to be protected by the [NIA,]" see Golden Hill, 39 F.3d at 58, especially in combination with its listing as an "Indian tribe" in the Federal Register, persuades the court that the Tribe has shown that it can satisfy the first element of an NIA violation. Further, as noted earlier, the St. Regis' tribal status under the NIA is the only aspect of standing under that statute which defendants are disputing now. Thus, as in St. Regis IV, "[t]he general allegations contained in the . . . [T]ribe[`s] pleadings . . . satisf[ies] both the constitutional and prudential requirements of standing given the procedural posture of this litigation." St. Regis IV, 146 F. Supp.2d at 184.

Having said that, as in St. Regis IV the court hastens to add that "if defendants contest standing in the future," the Tribe may need to produce specific facts. See St. Regis IV, 146 F. Supp.2d at 184 (citing, inter alia, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992)). This is especially so in terms of the St. Regis' contention that it is "a recognized successor in interest to the beneficiaries of the 1796 Treaty[.]" See Tr. Memo. at 5. Perhaps an inquiry into whether the St. Regis "fall[s] within the protection of the [NIA] . . . will prove fact-intensive[.]" St. Regis IV, 146 F. Supp.2d at 184. Such a factual inquiry is "beyond the purview" of this motion to strike, however, which confines the court to an examination of the sufficiency of the allegations contained in the pleadings. See id.

Accordingly, the court grants the Tribe's motion to strike standing as an affirmative defense as set forth in the State's answer in Main Land II (89-CV-829) at 11, ¶ 26, and as set forth in the Power Authority's Main Land II answer (89-CV-829) at ¶ 20.

B. "Defenses Already Considered by the Courts"

The Tribes place laches and Eleventh Amendment immunity in this category, although at first glance these two defenses seem to have little in common. Their common denominator however is that both have been repeatedly considered and rejected by courts in the land claim setting.

1. Laches

Turning first to laches, the State asserts that "[a] good faith argument for the extension, modification or reversal of existing law would dictate that the claims are barred by the federal common law defense of laches." St. An. (82-CV-783) at 11, ¶ 2; and St. An. (89-CV-829) at 8, ¶ 2 (emphasis added). The Municipal defendants assert a substantially similar defense, except they omit any reference to federal common law. See Mun. Def. An. (82-CV-783) at 21, ¶ 103; and Mun. Def. An. (89-CV-729) at 26, ¶ 117. The Power Authority's laches defense is more simplistic: "Plaintiffs' claims are barred, in whole or in part, by laches." Power Auth. (82-CV-114) ¶ 24; and Power Auth. (89-CV-729) at ¶ 26. These are not the only laches defenses which defendants are asserting, but they are the only ones which the Tribes are seeking to strike.

The primary basis for the Tribes' assertion that laches should be stricken is based upon this court's prior ruling in St. Regis IV, just slightly over two years ago, wherein it held that "laches is not available as a defense to defendants." See St. Regis IV, 146 F. Supp.2d at 187 (emphasis added). Despite that unequivocal pronouncement, and a long line of cases holding the same, defendants contend that it would be premature to strike laches because they posit the law on that issue will change. Defendants add that the court must deny this motion because there has been no discovery — an argument to which they repeatedly return.

Generally, "[l]aches developed as an equitable defense based on the Latin phrase maxim vigilantibus non dormientibus qeauitas subvenit, roughly translated as equity aids the vigilant, not those who sleep on their rights." Bolanos v. Norwegian Cruise Lines Limited, No. 01 Civ. 4182, 2002 WL 1465907, at *7 (S.D.N.Y. July 9, 2002) (internal quotation marks and citations omitted). "Stated another way, laches asks whether the plaintiff[s] in asserting [their] rights w[ere] guilty of unreasonable delay that prejudiced the defendants." Id. (internal quotation marks, citation and footnote omitted). By its very nature, land claim litigation is based upon historical events which in most instances transpired over two centuries ago. Thus, inherent in this type of litigation is the sense that plaintiffs should have somehow asserted their rights sooner. Undoubtedly it is that notion which first led defendants to invoke laches in land claim actions.

The issue of whether laches bars land claims has been frequently litigated leaving little if any room for dispute. Laches is not a defense to Indian land claims, at least as to liability. See Oneida Reservation, 194 F. Supp.2d at 123-24 (citing cases). Courts within this Circuit have "consistently rejected the use of delay-based defenses[]" in NIA actions. Id. at 123 (citations omitted). Twenty years ago, in the early stages of the Cayuga litigation, keeping with a series of rulings in other Northeast land claim actions, this court listed several "established" principles governing Indian land claims. See Cayuga Indian Nation of New York v. Cuomo, 565 F. Supp. 1297, 1301 (N.D.N.Y. 1983) ("Cayuga II"). Among those principles was that [at least to the extent it is state law based] laches is "unavailable" in land claim actions. See id. at 1301-02 (citing cases).

Twelve years ago, in Cayuga Indian Nation of New York v. Cuomo, 771 F. Supp. 19 (N.D.N.Y. 1991) ("Cayuga VI"), this court held that Oneida Indian Nation of New York State v. Oneida County, 719 F.2d 525 (2d Cir. 1983) ("Oneida III") "stands for the proposition that claims brought by Indian tribes in general, . . ., should be held by courts to be timely, and therefore not barred by laches, if, at the very least, such a suit would have been timely if the same had been brought by the [U.S.]" Cayuga VI, 771 F. Supp. at 22 (footnote omitted).

Two years ago this court in St. Regis IV explicitly "decline[d] th[e] [Municipal and State defendants'] invitation" to "reconsider" its prior ruling in Cayuga VI. St. Regis IV, 146 F. Supp.2d at 186. Then, as now, the "defendants urge[d] that neither the Supreme Court . . . nor the Second Circuit has conclusively determined whether or not laches is available as an equitable defense to Indian land claims brought under the [NIA]." Id.; see Def. Memo. at 9.

In adhering to the view that laches is not a defense in an NIA action, in St. Regis IV this court pointedly reminded defendants that "[t]he issue whether laches is available as an equitable defense to Nonintercourse Act claims, and the very same arguments made here by defendants, were thoroughly examined and rejected by this court in Cayuga VI[]" a decade earlier. See St. Regis VI, 146 F. Supp.2d at 186 (emphasis added). Thus, "[a]pplying . . . Cayuga VI to the instant case," this court held that "clear[ly] the tribes' and the [U.S.'] claims [were] timely." Id. Being intimately familiar with the Cayuga litigation, this court purposefully left open the possibility that laches may come into play here insofar as remedies are concerned. See id. at 187 ("[T]he instant suits here are timely, at least for liability purposes.")

Just last year, Judge Kahn likewise rejected the argument that even after the Supreme Court's decision in Oneida County v. Oneida Indian Nation of New York State, 470 U.S. 226, 105 S.Ct. 1245 (1985) ("Oneida IV") it remains an open question as to whether laches applies to claims by Indian tribes. See Oneida Reservation, 194 F. Supp.2d at 123. In so doing Judge Kahn explained, "even though the Supreme Court did not definitively decide the issue, the strong language it used in contemplating a laches defense has been recognized by lower courts as effectively barring the defense of laches in Indian land claims." Id. at 124. In light of the foregoing, it is no surprise that Judge Kahn easily concluded that "[t]he law on this issue [the availability of laches] overwhelmingly supports striking Defendants' laches . . . defense[] as legally insufficient." See id. at 124 (emphasis added). And hence, given the "extensive law rejecting" laches in land claim actions, the court in Oneida Reservation granted the Tribes' motion to strike that affirmative defense. See id. (emphasis added).

Refusing to take no for an answer, defendants persist in arguing that laches applies here and so should not be stricken as an affirmative defense. In an effort to avoid the inevitable, i.e., striking laches, the defendants make several arguments, none of which are persuasive. First, striking laches as a defense would from defendant's standpoint be "premature[]" because of the "potential significance of the pending appeals to the Second Circuit in both" the Cayuga litigation and Oneida Indian Nation of New York v. City of Sherrill, 145 F. Supp.2d 226 (N.D.N.Y. 2001), aff'd in part, vacated and remanded in part, No. 01-7795, 01-7797, 2003 WL 21691993 (2d Cir. July 21, 2003) ("Sherrill"), and ultimately perhaps review by the Supreme Court. Def. Memo. at 8 (emphasis added). Raising the possibility (and a meager one at that), of a change in law is nothing more than conjecture by defendants. The parties in Cayuga are raising a multitude of issues on appeal.

What is more, the Second Circuit has now rendered its decision in Sherrill and did not directly address laches, let alone "reverse" the clear trend disallowing that defense in Indian land claim actions. The Second Circuit did emphasize, however, the Supreme Court's position regarding delay-based defenses, such as laches:

Addressing delay-based arguments in Oneida II, the Supreme Court held that no federal limitations period applied and that it would be improvident to apply a parallel state requirement in this uniquely federal context. 470 U.S. at 240-44. As the Court pointed out, there is no time-bar for claims brought by the United States on behalf of Indians "to establish title to, or right of possession of, real or personal property." Id. at 241-43 & n. 15. The Oneida II majority also strongly suggested that a laches defense is improper for similar reasons. Id. at 244-45 & n. 16 ("[T]he application of laches would appear to be inconsistent with established federal policy.") (citing Ewert v. Bluejacket, 259 U.S. 129, 137-38, 42 S.Ct. 442, 66 L.Ed. 858 (1922) (doctrine of laches cannot bar a suit by individual Indians challenging land transactions for violating federal statutory restrictions on alienation)).
Sherrill, 2003 WL 21691993, at *22. Thus, since this court's May 2001 St. Regis IV decision, the only arguably relevant laches decisions within this Circuit are Sherrill and Oneida Reservation. And, as should be readily apparent, those decisions actually reinforce the Tribes' position: Laches has no place in Indian land claim actions.

Defendants make another attempt to avoid what seems like a foregone conclusion, i.e. striking laches as a defense. They baldly assert that this is "a different time and place, . . . subject to different standards[,]" thus implying that the court should reverse itself and allow the laches defense to stand. See Def. Joint Memo. at 9. Those claimed differences are not readily apparent and defendants did not elaborate.

Defendants' reference to "different standards" is especially puzzling. If, as it appears, defendants are trying to distinguish between St. Regis IV and the present motion on a procedural basis, that distinction is meaningless. The standard for this Rule 12(f) motion to strike "is the mirror image of the standard for considering whether to dismiss for failure to state a claim[]" under Rule 12(b)(6) — the basis for the defense motion in St. Regis IV. See Solvent Chemical Co. v. E.I. Dupont De Nemours & Co., No. 01-CV-425C, 2002 WL 313973703, at *13 (W.D.N.Y. Dec. 24, 2002) (emphasis added); see also United States v. Portrait of Wally, No. 99 Civ. 9940, 2002 WL 553532, at *4, n. 3 (S.D.N.Y. April 12, 2002) (citation omitted) (application of Rule 12(f) or Rule 12(b)(6) "is academic, as the standard is the same . . ., and courts . . . used both to reach the same result[]"). Accordingly, even though laches was before the court in St. Regis IV on a motion to dismiss, and now it is before the court on a motion to strike, that difference does not change the result. Indeed, the lack of any procedural differences, in combination with the fact that in the past two years there has been no change in the law, significantly undermines defendants' contention that laches should remain as a defense.

The court is aware that ordinarily the applicability of laches involves a fact intensive inquiry, thus making it improper to consider on a motion such as this which is confined to a review of the pleadings. See Carell v. Shubert Organization, Inc., 104 F. Supp.2d 236, 263 (S.D.N.Y. 2000) (citing Tri-Star Pictures Inc. v. Leisure Time Prods., BV, 17 F.3d 38, 44 (2d Cir. 1994)). By the same token, laches may be raised by a motion limited to a review of the pleadings when "it is clear on the face" and no set of facts can be proven "to avoid th[at] insuperable bar." Id. (citation omitted). Such is the case here, as the foregoing discussion amply shows. Just as in St. Regis IV, there is no reason for the court to deviate from its earlier ruling in Cayuga VI and defendants have shown no justification for such a departure. Consequently, the court grants the Tribes' motion to strike laches as an affirmative defense, but not in its entirety.

Prior to Cayuga, no other court had been directly confronted with the issue of whether laches may be implicated with respect to remedies in land claim litigation. In Cayuga VI, the laches issue arose solely as a defense to liability, implicitly leaving open the possibility that laches might again become an issue later with respect to remedies — and eventually it did. To illustrate, after considering all of the equities including laches, the court granted the defendants' motion in limine precluding ejectment as a remedy. See (Cayuga Indian Nation of New York v. Cuomo, 80-CV-930, 80-CV-960, 1999 WL 509442, at *30 (N.D.N.Y. July 1, 1999) ("Cayuga X"). Eventually the court held that laches did have bearing on the pre-judgment interest award.

In a supplemental pre-trial order entered with respect to the pre-judgment interest phase of Cayuga, this court allowed the State to proffer evidence, inter alia, as to "the plaintiffs' alleged unreasonable delay in asserting their interests in the subject land." Def. App. D. (Cayuga Indian Nation of New York v. Pataki, 2000 U.S. Dist. LEXIS 7045, at *11 (N.D.N.Y. May 17, 2000)). It also allowed proof "as to what efforts, if any, plaintiffs made in asserting their claims to the subject property, and the State's response or lack thereof to such efforts." Id. at *11-*12. Ultimately the court took that evidence into account, along with a host of other factors, in deciding the Cayugas' prejudgment interest award. See generally Cayuga Indian Nation of New York v. Pataki, 165 F. Supp.2d 266 (N.D.N.Y. 2001). Consistent with Cayuga and this court's allusion in St. Regis IV that laches may become relevant down the line as to remedies, although it is granting the Tribes' motion to strike laches as it pertains to liability, to the extent that defense can be read as pertaining to remedies, the court denies the Tribes' motion to strike the same.

2. Eleventh Amendment

In the Main Land actions, as well as in the Island actions, the State alleges that "[t]he Eleventh Amendment to the U.S. Constitution bars some or all of the claims[]" herein. St. An. (82-CV-1114) at 11, ¶ 24; St. An. (82-CV-783) at 13, 66 24 and 25; and St. An. (89-CV-829), at 11, ¶ 24. Well aware that in St. Regis IV this "Court . . . ruled as a matter of law on the inapplicability of the [Eleventh Amendment] in this case[,]" the State continues to assert this defense, but "for the purpose of preservation only." Id. (emphasis added).

Obviously the State is fully aware of this court's prior Eleventh Amendment ruling. Addressing the potential impact of Eleventh Amendment immunity on the Tribes' claims herein, this court "follow[ed] its previous rationale in Cayuga[X]." St. Regis IV, 146 F. Supp.2d at 181. This court held that "the [Trib[es] . . . [could] maintain their current claims and the relief they seek against the State[]" regardless of the Eleventh Amendment. See id. (footnote omitted). Furthermore, adopting the Power Authority's theory that "because the State appropriated the islands at issue in this action," the court further held that "the Eleventh Amendment also bars all of the . . . [T]ribes' claims against" the Power Authority. See id. at 181, n. 8. Despite the foregoing, the State persists in arguing that the Eleventh Amendment should not be stricken because it is being asserted "for the purpose of preservation only." See St. An. at ¶ 24 (emphasis added). The court disagrees.

Viewing Eleventh Amendment immunity as jurisdictional, the State contends that the same can be asserted "at anytime during the litigation[,]" and thus the Tribes will "suffer no prejudice" if the court allows this defense to stand. See Def. Memo. at 7 and 10 (citations omitted). In Cayuga X, recognizing the "competing theories as to the nature of the Eleventh Amendment," i.e. whether it is a limitation on the court's subject matter jurisdiction or a grant of immunity, "in accordance with Second Circuit precedent, . . . this court . . . treat[ed] th[at] Amendment as jurisdictional[.]" Cayuga X, 1999 WL 509442, at *7, n. 6. The Second Circuit has continued to adhere to the view that essentially the Eleventh Amendment is jurisdictional in nature, and hence may be raised at any point during the litigation. See McGinty v. New York, 251 F.3d 84, 94 (2d Cir. 2001) (citing cases) ("[T]he Supreme Court and this Court have repeatedly held that a state may assert Eleventh Amendment sovereign immunity at any time during the course of proceedings."); see also Richardson v. New York State Dept. of Corr. Ser., 180 F.3d 426, 448-49 (2d Cir. 1999) (State did not wait too long to raise Eleventh Amendment immunity when it waited to do so for the first time on a summary judgment motion).

Plainly the State is right: To the extent the Eleventh Amendment is jurisdictional, it can be raised at any time during the litigation. Precisely because Eleventh Amendment immunity can be raised at any time, however, means that the State will not suffer any prejudice by granting this motion to strike. The State will not suffer any prejudice because, as is the Power Authority, it too is alleging that "[t]o the extent the Plaintiffs raise claims and/or seek relief beyond that sought in the [U.S.'] Complaint . . ., such claims and/or relief is barred by the Eleventh Amendment." St. An. (82-CV-1114) (82-CV-783) (82-CV-829) at ¶ 25; and Power Auth. An. (82-CV-1114) at ¶ 16; and Power Auth. An. (89-CV-829) at 6 19. The Tribes are not seeking to strike this particular Eleventh Amendment defense. See Pl. Memo. at 4, n. 2. Therefore, even if the court grants the Tribes' motion to strike the Eleventh Amendment defense which the State is asserting for preservation purposes only, the State still will be free to pursue Eleventh Amendment immunity.

This result is fully consistent with St. Regis IV wherein the court reiterated its position "that the State may reassert its sovereign immunity if, down the road, the [T]rib[es] . . . attempt to raise claims or issues different than those of the [U.S.]" See St. Regis IV. 146 F. Supp.2d at 181 (citing Cayuga X, 1999 WL 509442, at *13). It is noteworthy that on this motion the State does not even hint at the possibility that the Tribes are raising claims or issues which are different that those which the U.S. is raising. Additionally, despite the State's assertion to the contrary, the Tribes could be prejudiced by allowing the Eleventh Amendment to stand because it in all likelihood it would only result in needless discovery, adding further confusion to an already complex case.

In another attempt to avoid striking this particular Eleventh Amendment defense, the State asserts that there is "a significant legal issue that has not yet been addressed by the Supreme Court in this context[,]" which is "the extent to which the State retains its Eleventh Amendment immunity with respect to Indian tribes when the [U.S.] intervenes in the tribes' lawsuit[.]" Def. Memo. at 16 (citations omitted). Given this purportedly "significant legal issue," the defendants contend, without any analysis, that the court should deny the Tribes' motion to strike the Eleventh Amendment as a defense, even though it is being asserted for "preservation purposes only."

That argument falls on deaf ears. Again, as with laches, the law pertaining to Eleventh Amendment immunity in the land claim context is established. As the court explained in St. Regis IV, "this Circuit's decisional law permits tribal plaintiffs to remain in an action where the [U.S.] has intervened, so long as the tribal plaintiffs' issues and claims are identical to those made by the [U.S.]" St. Regis IV, 146 F. Supp.2d at 180 (citing Seneca Nation of Indians v. State of New York, 178 F.3d 95, 97 (2d Cir. 1999) (per curiam), aff'g, 26 F. Supp.2d 555 (W.D.N.Y. 1998); and Arizona v. California, 460 U.S. 605, 614, 103 S.Ct. 1382, 1388-89 (1983)); see also Oneida Reservation, 194 F. Supp.2d at 129 (citing, inter alia, Oneida Nation of New York v. State of New York, 691 F.2d 1070, 1080 (2d Cir. 1982))*fn14 ("When litigation is brought by or could have been brought by the [U.S.] on behalf of an Indian Nation and the claims made by the [U.S.] are identical to those made by the Indian tribe, the Eleventh Amendment has been found not to apply.") Once again, the court declines to depart from well established law based solely on defendants' speculation that the Supreme Court will come to a different conclusion.

Moreover, the State's argument that a "factual inquiry" is necessary to resolve the Eleventh Amendment immunity issue is equally unavailing. See Def. Memo. at 18. In the first place, as the State acknowledges, to determine whether or not the Tribes' claims, issues and relief are virtually identical to those which the U.S. is raising, requires a comparison of same as alleged in the amended complaints of those parties. See id. By definition, such a comparison does not necessitate a "factual inquiry." Indeed in both St. Regis IV and Cayuga X, this court engaged in such a comparison without a factual inquiry going beyond the scope of the pleadings. See St. Regis IV, 146 F. Supp.2d at 181 (citing Cayuga X, 1999 WL 509442, at *13). For all of these reasons, the court grants the Tribes' motion to strike the State's Eleventh Amendment defense asserted for "preservation" purposes only.

C. "Defenses Clearly Rejected by the Supreme Court"

1. Abatement

There are two defenses which the Tribal plaintiffs deem to have been "clearly rejected by the Supreme Court." The first is abatement. In Oneida County v. Oneida Indian Nation of New York, 470 U.S. 226, 105 S.Ct. 1245 (1985) ("Oneida IV"), the Court "question[ed]" the relevancy of the common law doctrine of abatement to the NIA, a civil statute. Oneida IV, 470 U.S. at 245, n. 17, 105.S.Ct. at 1257, n. 17. Nonetheless, the Court held that the Oneida's NIA cause of action did not abate when the 1793 version of that statute expired and a subsequent version was enacted. See id. at 245-56; 105 S.Ct. at 1257. As noted at the outset, the defendants do not oppose the motion to strike the abatement defense. Evidently the defendants realize the futility in doing so. The defendants are unwilling to concede, however, that Oneida IV also requires that the statute of limitations defense be struck, at least to the extent the Tribes are alleging NIA and federal common law land claims. Thus, the court will turn to the statute of limitations issue in that context.

2. Statute of Limitations

Of the two statute of limitations defenses which the State asserts, the Tribes seek to strike only one. In particular, the Tribes seek to strike the State's defense wherein it urges that "[a] good faith . . . extension, modification or reversal of existing law would dictate that the claims are barred by the relevant statute of limitations."*fn15 St. An. (82-CV-783) and (89-CV-289) at ¶ 18. The Tribes also seek to strike the Power Authority's statute of limitations defense, which is that "[t]he causes of action, other than the federal common law land claim and the Trade and Intercourse Act claim, are barred, by the applicable statute of limitations." Power Auth. An. (89-CV-829) at ¶ 14; and Power Auth. An. (82-CV-1114) at ¶ 11 (emphasis added). Read together with the complaints, it is apparent that the Power Authority is limiting this defense to the Tribes' ...


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