Civil Action Nos. 82-CV-783, 82-CV-1114, 89-CV-829 IN THE ... · the st. regis mohawk tribe, by the...

Civil Action Nos. 82-CV-783, 82-CV-1114, 89-CV-829 ______________________

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK _________________________

THE CANADIAN ST. REGIS BAND

OF MOHAWK INDIANS, Plaintiff,

UNITED STATES OF AMERICA, Plaintiff-Intervenor,

v.

STATE OF NEW YORK, et al., 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,

UNITED STATES OF AMERICA, Plaintiff-Intervenor,

v.

STATE OF NEW YORK, et al, Defendants.

______________________________

THE ST. REGIS MOHAWK TRIBE AND THE MOHAWK NATION COUNCIL OF CHIEFS MEMORANDUM IN OPPOSITION TO THE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

MARSHA K. SCHMIDT ALEXANDRA C. PAGE MICHAEL L. ROY INDIAN LAW RESOURCE CENTER HOBBS, STRAUS, DEAN 601 E Street, S.E. & WALKER, LLP Washington, DC 20003 2120 L Street, N.W., Suite 700 (202) 547-2800 Washington, DC 20037 (202) 822-8282 CURTIS BERKEY ALEXANDER, BERKEY, WILLIAMS & Counsel for the St. Regis WEATHERS, LLP Mohawk Tribe 2030 Addison Street, Suite 410 Berkeley, CA 94704 (510) 548-7070 Counsel for the Mohawk Nation Council of Chiefs

Case 5:82-cv-00783-NPM-TWD Document 471 Filed 07/13/07 of 81

TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES.............................................................................. iv

PART I – The Standard of Review and Legal Framework ....................................5

A. To Succeed in Their Motions, The Defendants Must Show that the Mohawks Can Prove No Set of Facts That

Would Entitle Them to Relief........................................................5 1. Rule 12(c) Standard...........................................................5 2. Conversion to Summary Judgment Motion ........................6 3. Summary Judgment Standard ..........................................10

B. The Defendants Are Not Entitled to Judgment on All Mohawk Claims Based on the Relief Pled in the Mohawks' Complaints ....10 C. The Sherrill and Cayuga Courts Set Forth a Standard by Which this Court May Judge If a Claim or Remedy is Disruptive ...........14

1. The Sherrill and Cayuga Courts Both Focused on Specific Facts to Support a Finding of Disruption............15 2. In Sherrill, the Court Used Reservation Diminishment Cases as a Touchstone for Measuring Disruption and the Impact in the Claimed Area........................................17 3. Having Decided the Remedy was Disruptive, the Supreme Court in Sherrill Relied on Equitable Principles To Determine if the Remedy Should be Barred................18 4. In Cayuga, The Second Circuit First Found Disruption Before Applying Equitable Considerations ......................19

PART II – The Islands Claim .............................................................................20

A. Statement of Facts.......................................................................21

1. History of the Establishment of the Reservation...............21

2. The History of Mohawk Ownership of the Islands ...........22


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3. The Mohawks Challenged the Taking of The Islands.......23

4. NYPA's Use of the Islands...............................................25

B. Argument – The Mohawk Islands Claim Is Not Disruptive and Therefore Is Not Subject to the Equitable Considerations That Would Justify Dismissal......................................................26

1. Through the Federal Power Act, Congress Has Enacted a Remedial Scheme Whereby Tribes Are Prevented from Disrupting the Operation of Projects Located on Tribal Lands.....................................26 2. The Mohawks Have Repeatedly Asserted Their Right to Title in the Islands such that NYPA Could Have No Settled Expectation of Unchallenged Title ........29 3. In Addition, Some of the Islands Do Not Meet the Disruption Test Because They are Uninhabited................31

PART III – The Mainland Claim........................................................................31

A. Statement of Facts.......................................................................32

1. History of Land Sales ......................................................32

2. History of the Demographics and Land Ownership Of the Area......................................................................33

3. History of Tribal Governmental Authority in the Triangle...........................................................................39 4. History of Previous Claims to the Area ...........................42

B. ARGUMENT..............................................................................44

1. The Hogansburg Triangle Claim Area Is Distinguishable From the Lands at Issue in Sherrill and Cayuga Since It is Largely Indian-owned and -Occupied ................................................................44

2. The Diminishment Cases Show that an Award of Indian Title is Not Necessarily Disruptive........................44


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3. The Hogansburg Triangle Demographics Show an Overwhelming Indian Presence and Therefore Minimal Disruption of Non-Indian Interests ....................46

4. The Town of Fort Covington Claim Area is Distinguishable As to The Indian-owned and -occupied Lands ..............................................................51

PART IV – The Rights-of-Way Claim ...............................................................52

A. Statement of Facts – History of Rights-of-Way Taken by Niagara Mohawk Power Company..............................................53

B. Argument – The Rights-of-Way Claim Does Not Meet the Disruption Test Since Federal Law Permits Rights-of-Way Across Indian Lands....................................................................54

PART V – Laches Does Not Bar the Mohawks' Claims......................................56

A. Cayuga Does Not Require Dismissal of the Mohawks' Claim As a Matter Of Law ....................................................................56 B. The Defendants Have Not Met Their Burden To Show the Mohawks Unreasonably and Inexcusably Delayed In Filing These Suits..................................................................................59

1. To the Extent They Were Able, the Mohawks Did Challenge The Defendants' Rights to Their Lands............60 2. State Law Essentially Precluded the Filing of Such Indian Land Claims Until 1937........................................60 3. Federal Courts Were Also Considered Closed to Indians .62 4. The Mohawks Sought Alternative Relief .........................63

C. The Defendants Have Not Met Their Burden of Showing Prejudice.....................................................................................65

PART VI – The Second Circuit's Ruling in Cayuga Violates the Principles Set Forth in Oneida I and II and the Narrow Scope of the Sherrill Ruling ................................................................................70 CONCLUSION..................................................................................................70


iv

TABLE OF AUTHORITIES

Cases Page No. Aluminum Fab. Co. v. Season-All Window Corp., 160 F.Supp. 41 (S.D.N.Y. 1957).............62 American Silicon Technologies v. U.S., 261 F.3d 1371 (Fed. Cir. 2001) ..............................15 Canadian St. Regis Band of Mohawk Indians v. New York, 278 F.Supp.2d 313 (N.D.N.Y. 2003) ...................................................................... 8, 10, 58 Canadian St. Regis Band of Mohawk Indians v. State, 146 F.Supp.2d 170 (N.D.N.Y. 2001) ................................................................................35 Cayuga Indian Nation v. Cuomo, Nos. 80-CV-930, 80-CV-960, 1999 U.S. Dist. LEXIS 10579 (N.D.N.Y. July 1, 1999) .......................................... 9, 11, 47 Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2005) .................................................. passim Celotex Corp. v. Cadrett, 477 U.S. 317 (1986) ....................................................................10 City of New Town v. United States, 454 F.2d 121 (8th Cir. 1972) ........................................46 City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005)...................................... passim Coleman v. B.G. Sulzle, Inc., 402 F.Supp.2d 403 (N.D.N.Y. 2005)....................................5, 6 Conopco, Inc. v. Campbell Soup Company, 95 F.3d 187 (2d Cir. 1996)...............................66 County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) ..................................11, 70 Deere v. New York, 22 F.2d 851 (N.D.N.Y 1927), aff'd, Deere v St. Lawrence River Power Co., 32 F.2d 550 (2d Cir. 1929)........................42, 43, 60, 63, 64 DeSilvio v. Prudential Lines, Inc., 701 F.2d 13 (2d Cir. 1983).............................................58 Donovan v. Burger King Corp., 675 F.2d 516 (2d. Cir. 1982)..............................................12 Farmer v. Arabian American Oil Co., 285 F.2d 720 (2d Cir. 1960) .....................................13 Felix v. Patrick, 145 U.S. 317 (1892) ............................................................................13, 18 Galliher v. Cadwell, 145 U.S. 368 (1892)......................................................................59, 60


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Gins v. Mauser Plumbing Supply, 148 F.2d 974 (2d Cir. 1945) ...........................................12 Goodman v. McDonnell Douglas Corp., 606 F.2d 800 (8th Cir. 1979) ................................66 Hagen v. Utah, 510 U.S. 399 (1995)........................................................................ 17, 45, 46 Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) ..............................................................15 Hathaway v. County of Essex, 995 F.Supp. 62 (N.D.N.Y. 1998)............................................6 In re Beaty, 306 F.3d 914 (9th Cir. 2002) ............................................................................62 Ivani Contracting Corp. v. City of New York, 103 F.3d 257 (2d Cir. 1997) ..........................58 Jackson ex dem Van Dyke v. Reynolds, 14 Johns. 335 (1817) ..............................................61 Johnson v. Long Island R.Co., 56 N.E. 992 (N.Y. 1900)......................................................59 King v. Allied Vision, Ltd., 807 F.Supp. 300 (S.D. N.Y. 1992).............................................68 Lake Caryonah Imp. Ass'n v. Pulte Home Corp., 903 F.2d 505 (7th Cir. 1990)....................67 Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531 (2d Cir. 1997)....................10 Lennon v. Seaman, 63 F.Supp.2d 428 (S.D.N.Y. 1999) .......................................................58 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) .....................10 Re Montana Power Co. 38 FPC 766, 775 (Oct. 4, 1967) aff'd sub nom. Montana Power Co. v. FPC, 459 F.2d 863 (D.C. Cir. 1972).............................................27 O'Brien v. United States, 148 Ct.Cl. 1 (1960) ......................................................................58 Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. 527 (N.D.N.Y. 1977) ....................................................................................68 Oneida Indian Nation of Wisconsin v. State of New York, 732 F.2d 261 (2d Cir. 1984) .............................................................................................67 Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) ................................. passim Oneida Indian Nation of New York, et al v. State of New York, No. 574-CV-187, 2007 WL 1500489 (N.D.N.Y.) ...................................................... passim Organizations United for Ecology v. Bell, 446 F.Supp. 535 (D.Pa. 1978) ............................60


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Paiute-Shoshone Indians of Bishop Community of Bishop Colony, California v. City of Los Angeles, No. 1:06-CV-00736, 2007 WL 521403 (E.D. Cal. February 15, 2007)...........................................................4, 57 Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123 (2d Cir. 2001) ..................5, 6 Patel v. Searles, 305 F.3d 130 (2d Cir. 2002) ..................................................................6, 11 Pinto v. Allstate Ins. Co., 221 F.3d 394 (2d Cir. 2000).........................................................10 Schwartz v. Eaton, 264 F.2d 195 (2d Cir. 1959) ..................................................................13 Seneca Nation v. Christy, 162 U.S. 283 (1896)....................................................................59 Shinnecock Indian Nation v. New York, No. 05-CV-2887, 2006 WL 3501099 (E.D.N.Y. Nov. 28, 2006).....................................................................3 Solem v. Bartlett, 465 U.S. 463 (1984) ..........................................................................17, 45 South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) ...........................................45, 51 St. Regis Indians v. Drum, 19 Johns. 127 (1821)..................................................................61 St. Regis Indians v. James Spencer ......................................................................................61 St. Regis Mohawk Tribe v. New York, 5 N.Y.2d 24 (N.Y. 1958) ....................................24, 30 Stone v. Williams, 873 F.2d 620 (2d Cir.), cert. denied, 493 U.S. 959 (1989).......................57 The Key City, 81 U.S. (14 Wall.) 653 (1871) .......................................................................58 TransWorld Airlines, Inc. v. American Coupon Exchange, 913 F.2d 676 (9th Cir. 1990) ............................................................................................66 Travelers Ins. v. Cuomo, 14 F.3d 708 (2d Cir. 1994) ...........................................................62 United States ex rel. Bergen Point Iron Works v. Maryland Casualty Co., 384 F.2d 303 (2d Cir. 1967) .............................................................................................12 United States v. Franklin County, 50 F.Supp. 152 (N.D.N.Y. 1943) ............................. passim United States v. Imperial Irrigation District, 799 F.Supp. 1052 (S.D.Cal. 1992)..................13 United States v. Southern Pacific Transp. Co., 543 F.2d 676 (9th Cir. 1976) .......................54 Wauchope v. U.S. Dept. of State, 985 F.2d 1407 (9th Cir. 1993)..........................................65


vii

Yankton Sioux Tribe v. United States, 272 U.S. 351 (1926) ...........................................13, 19 Statutes 25 U.S.C. § 323-328.................................................................................................. 4, 53, 54 Federal Power Act, 16 U.S.C. § 803....................................................................................26 N.Y. Indian Law, § 114.......................................................................................................41 Nonintercourse Act, 25 U.S.C. § 177..............................................................4, 43, 52, 53, 54 Regulations 25 C.F.R. Part 169............................................................................................... 4, 53, 54, 55 Treaties Treaty of Buffalo Creek, Jan. 15, 1838, 7 Stat. 550..............................................................42 Treaty of Ghent, Dec. 24, 1814, 8. Stat. 218 ........................................................................22 Treaty with the Seven Nations of Canada, May 31, 1796, 7 Stat. 55 ............................. passim Rules Fed.R.Civ.P. 54(c)...............................................................................................................12 Fed.R.Civ.P. 56(c)...............................................................................................................10 Treatises 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1371

(3d ed. 2004) .....................................................................................................................6 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2664 (3d ed. 1998) ......................................................................................12


UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

________________________________________________ THE CANADIAN ST. REGIS BAND OF MOHAWK INDIANS, Plaintiff, Civil Action Nos. UNITED STATES OF AMERICA, 82-CV-783 Plaintiff-Intervenor, 82-CV-1114 (NPM) v. STATE OF NEW YORK, et al., 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, Civil Action No. Plaintiffs, 89-CV-829 (NPM) UNITED STATES OF AMERICA, Plaintiff-Intervenor, v. STATE OF NEW YORK, et al., Defendants. _________________________________________________

THE ST. REGIS MOHAWK TRIBE AND THE MOHAWK NATION COUNCIL OF CHIEFS MEMORANDUM IN OPPOSITION TO THE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

Relying on the recent court ruling in City of Sherrill v. Oneida Indian Nation, 544

U.S. 197 (2005), and Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2005), the Defendants


2

have asked this court for judgment on the pleadings, arguing in various iterations that the

Mohawk land claim is inherently disruptive and therefore barred by laches. This argument

greatly oversimplifies the Cayuga and Sherrill rulings and should be rejected. The

Defendants' argument boils down to the simple notion that all historic Indian land claims are

automatically barred by laches. This principle is not established by Cayuga and Sherrill and

this court is not free to simply assume that the Mohawk land claims are barred because they

are old.

Under the Sherrill/Cayuga analysis, this Court must first determine whether these

claims are disruptive in the same nature or to the same degree as those in Sherrill or Cayuga.

If they are not disruptive, then that ends the inquiry; the equitable considerations outlined in

those cases do not come into play and the equitable doctrine of laches is inapplicable. If, on

the other hand, this Court finds that some of the claims are disruptive, then the claims may be

subject to laches and "could be dismissed on that basis," Cayuga, 415 F. 3d at 278 (emphasis

added). Neither Sherrill nor Cayuga held that the application of laches automatically

requires dismissal.

As this Court well knows, cases are determined based on the application of the law to

facts. The Defendants assume that the facts in the Mohawk claim mirror Cayuga and Sherrill

as disruptive land claims that warrant dismissal. To the contrary, the facts for at least some

of the Mohawk claims are wholly distinguishable and are not disruptive in the vein of

Sherrill and Cayuga. Specifically, for the Islands Claim, in which the Mohawks1 claim title

1 For ease of reference, the Mohawk plaintiffs will be referred to as follows: The Mohawk Council of Akwesasne, who were titled the Canadian St. Regis Band of Mohawks at the time the complaint was filed, will be referred to as "MCA." The St. Regis Mohawk Tribe will be referred to as "SRMT or "the Tribe". The People of the Longhouse, who are


3

to certain islands in the St. Lawrence River, the Federal Power Act protects Defendants from

the dire consequences they predict. Defendant New York Power Authority ("NYPA") argues

that placing title in the Mohawks would be disruptive to it and the customers it serves. In

fact, the Federal Power Act sets forth a mechanism by which hydroelectric projects can

function on Indian reservations without threat of interruption. Neither Sherrill nor Cayuga

nor any of the land claim cases decided pursuant to them has considered a situation where

such a remedial scheme prevents the disruption that the parties claim will ensue if there is an

award of Indian title.2

As to the Mainland Claim, the large Indian population, low population density, strong

Indian character, and exercise of tribal authority in parts of the claim area sharply distinguish

this claim from Sherrill, Cayuga, and their progeny. In no other land claim has a court been

presented with a situation where a claim area is actually majority populated and owned by

Indians. The Mohawks currently occupy a 14,000 acre reservation3 adjacent to the claim

areas in Northern New York and the demography and land ownership patterns in certain

portions of the land claim area are predominantly Indian. For example, the Mohawks -- and

to an extent their non-Indian neighbors -- have treated the Hogansburg Triangle, one of the

now called the Mohawk Nation Council of Chiefs, will be referred to as "MNCC." The entire group will be referred to as "the Mohawks." 2 See, e.g., Shinnecock Indian Nation v. New York, No. 05-CV-2887, 2006 WL 3501099 (E.D.N.Y. Nov. 28, 2006); Oneida Indian Nation of New York, et al., v. State of New York, et al., No. 574-CV-187, 2007 WL 1500489 (N.D.N.Y. May 21, 2007) (hereinafter "Oneida"). 3 The Mohawks allege that the land claim areas are still part of their 24,000 acre original reservation, which was provided for in the 1796 treaty. But these lands are not currently recognized as such. For clarity, when referring to "the reservation" we are referring to the currently recognized reservation, excluding land claim areas, not the original reservation.


4

land claim areas, as part of the Mohawk reservation for generations. In this area -- where the

Mohawk population predominates by a large majority, where the land is largely owned or

occupied by tribal members, and where the St. Regis Mohawk Tribe has for many years

exercised its authority -- few non-Indians would be impacted by this suit and the possibility

of disruption envisioned in Sherrill and Cayuga is minimal.

Finally, the Mohawk suit also includes claims based on the mid-20th century

acquisition of rights-of-way by specific Defendants both on the reservation and in the land

claim areas. The rights-of-way were not acquired in compliance with federal law controlling

the granting of rights-of-way on the reservation and, therefore, are invalid under the

Nonintercourse Act, 25 U.S.C. § 177. Like the Mohawk Islands Claims, these claims are

controlled by a federal scheme that is intended to minimize disruption and thus removes

these claims from the analytical framework for "disruptive" land claims established by

Sherrill and Cayuga. See 25 U.S.C. § 323-328; 25 C.F.R. Part 169. In addition, these claims

are relatively recent in vintage and do not implicate any settled expectations of private

landowners.

Even if any of the Mohawk claims are deemed disruptive, application of laches

pursuant to Cayuga should not result in dismissal. For laches to require dismissal of this

case, this Court must first make findings on the facts surrounding these claims, including an

evidentiary hearing if necessary.4 The Mohawks will show that even if laches does apply,

4 Oneida is not to the contrary. There, the court relied on undisputed facts already established by the parties in the District Court in the case and by the Supreme Court in Sherrill. See Oneida, 2007 WL 1500489 at *4-*7. Here, the Mohawks vigorously dispute the relevant facts and further factual development is required. See also Paiute-Shoshone Indians of Bishop Community of Bishop Colony, California v. City of Los Angeles, No. 1:06-cv-00736, 2007 WL 521403, at *11 (E.D. Cal. February 15, 2007) (holding pursuant to


5

laches cannot serve as a basis for dismissal because the Mohawks did not unreasonably delay

and because in this case prejudice to the defendants would be minimal.

In the interests of judicial economy we present here a single brief, answering all three

motions filed by the Defendants. It is divided into several discrete sections.

Part I addresses the applicable law, including Sherrill and Cayuga, the standard of

review and other procedural issues, including the interpretation of the Mohawk complaint,

and this Court's authority to fashion a remedy.

Part II presents a statement of facts and argument as to the Islands Claim.

Part III presents facts and argument regarding the Mainland Claim.

Part IV discusses the Rights-of-Way Claim.

Part V addresses laches.

Part VI addresses the errors in the Cayuga decision for preservation purposes.

Part I - The Standard of Review and Legal Framework

A. To Succeed in Their Motions, The Defendants Must Show that the Mohawks Can Prove No Set of Facts That Would Entitle Them to Relief.

1. Rule 12(c) Standard

The Defendants have moved under Rule 12(c) for judgment on the pleadings. The

standard for granting a Rule 12(c) motion is identical to that of a Rule 12(b)(6) motion for

failure to state a claim. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126

(2d Cir. 2001); Coleman v. B.G. Sulzle, Inc., 402 F.Supp.2d 403, 409 (N.D.N.Y. 2005)

(McCurn, J.). In deciding the Rule 12(c) motion, as with a Rule 12(b)(6) motion, the district

court must accept all allegations in the complaint as true and draw all inferences in the non-

Sherrill and Cayuga that "the issue of laches raises significant questions of fact that cannot be resolved on a motion to dismiss").


6

moving party's favor. Patel v. Searles, 305 F.3d 130, 133-34 (2d Cir. 2002); Contemporary

Classics of Beverly Hills, 259 F.3d at 126; Coleman, 402 F.Supp.2d at 409. "A complaint

will only be dismissed if 'it appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.' " Patel v. Searles, 305 F.3d at 135

(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Accord, Contemporary Classics of

Beverly Hills, 259 F.3d at 126; Coleman, 402 F.Supp.2d at 409.

2. Conversion to Summary Judgment Motion

Rule 12(c) provides that "if, on a motion for judgment on the pleadings, matters

outside the pleadings are presented to and not excluded by the court, the motion shall be

treated as one for summary judgment, and disposed of as provided in Rule 56, and all parties

shall be given reasonable opportunity to present all material made pertinent to such a motion

by Rule 56." See e.g., Hathaway v. County of Essex, 995 F.Supp.62, 67 (N.D.N.Y. 1998)

(converting Rule 12(c) motion to motion for summary judgment); see also 5C Charles Alan

Wright, & Arthur R. Miller, Federal Practice and Procedure § 1371 (3d ed. 2004) ("In

practice, the great majority of Rule 12(c) motions eventually are converted into motions for

summary judgment. This is because it is usually necessary to introduce supporting affidavits

and other written documents to prove that no triable issue of facts actually is in dispute.").

Concurrently with this memorandum of law, the Tribe and MNCC have filed a Response to

Statement of Material Facts as well as declarations and documentary evidence supporting

their claims, and countering the defendants' motions. This Court should not exclude the

proffered evidence, for several reasons.

First, as noted below, the evidence is in response to facts alleged in the Defendants'

motions and is directly relevant to the issues raised by those motions. For example, the


7

Mohawks' evidence concerning the Indian nature of the area, see below at pp. 32-41, 46-52,

is directly relevant to the Sherrill and Cayuga inquiries into the Indian or non-Indian

character of the claim areas, see below at pp. 16-17, and is submitted to counter evidence

submitted by the Defendants in support of their motion for judgment on the pleadings.

Municipal Defendants have submitted Census data to establish the non-Indian

character of the area, Muni. Defs. Exhs. 8-10, and have asked that the Court take judicial

notice of such evidence. Muni. Defs. Memo. at 16-17. The Municipal Defendants'

submission opens the door to the Mohawks' own submission of evidence on this point.

Although the Court may consider evidence as to which it may take judicial notice on a Rule

12(c) motion without converting the motion to a motion for summary judgment, it would be

fundamentally unfair to consider the Census data offered by the Municipal Defendants

without according the Mohawks the opportunity to proffer its own evidence on the point,

particularly given the relevance of the evidence to the pending motions. Having provided

their own data and arguments on the census, the Defendants admit its relevance.

The Mohawks' evidence also goes to dispute other relevant facts and issues raised by

the Defendants' motions, such as whether the claims are disruptive, i.e., whether non-Indians

will be impacted or displaced, below at pp. 26-28, 33-36, or whether the Mohawks

unreasonably delayed in bringing their claims, see below at pp. 23-25, 42-43, 63-65. In so

doing, the Defendants have offered facts that are not within the four corners of the complaint

and are also not subject to judicial notice. See SRMT/MNCC Response to Statement of

Material Facts detailing disputed facts. This places the motion outside of the Rule 12(c)

standard and requires them to be treated as summary judgment motions.


8

For example, the Municipal Defendants allege as fact that the Mohawks "did not seek

recovery of their former reservation lands until commencement of their lawsuits in 1982."

Muni. Defs. Memo at 12. They admit that the facts to support this assertion are not in the

complaint and they provide no other independent support for the assertion. Id. at 13. Indeed,

they then admit that lawsuits were filed but attempt to legally distinguish them. Id.

Similarly, NYPA claims that the Mohawks "vacated" the islands, with no evidentiary support

whatsoever in either the complaint or in other evidence. NYPA Memo. at 15. The Mohawks

dispute both of these allegations. See SRMT/MNCC Response to Statement of Material

Facts ¶ 4.

In addition, the Defendants' motions raise defenses such as laches that are typically

fact-based defenses that require the development of evidence and an evidentiary hearing. See

discussion below at pp. 56-59. Although the Mohawks agree that this Court has the power to

reconsider its previous decision on laches in light of changes in the law, the Mohawks should

still be given every opportunity to engage in the "fact intensive inquiry" recognized by this

Court to rebut the assertions made by the Defendants to support a finding of laches.

Canadian St. Regis Band of Mohawk Indians v. New York, 278 F.Supp.2d 313, 333

(N.D.N.Y. 2003).

While the Defendants argue that the Second Circuit's decision in Cayuga requires a

judgment on laches as a matter of law and that no hearing is required, they ignore that the

decision was expressly based not just on the Supreme Court's ruling in Sherrill, but also on

the findings of this Court in the remedy stages of that case that led to the holding that

ejectment was barred by laches. Cayuga, 413 F.3d at 268 ("Taking into account the

considerations identified by the Supreme Court in Sherrill and the findings of the District


9

Court in the remedy stages of this case, we further conclude that the plaintiffs' claim is barred

by laches."); Id. at 277 (citing Cayuga Indian Nation v. Cuomo, Nos. 80-cv-930, 80-cv-960,

1999 U.S. Dist. LEXIS 10579 (N.D.N.Y. July 1, 1999) ("Cayuga X") (attached as App. A to

Muni. Defs. Memo).

Judge Kahn's recent ruling in Oneida Indian Nation v. State of New York supports the

application of this longstanding rule – that laches is a fact-based inquiry – to New York

Indian land claims. 2007 WL 1500489 (N.D.N.Y. May 21, 2007). In that decision, Judge

Kahn reviewed specific factual submissions by the parties and factual considerations laid out

by the courts in Sherrill and Cayuga to determine whether the defense of laches barred the

Oneidas' claims. Id. at *4-*7. Judge Kahn then examined the factual record developed by

the District Court in the Oneidas' land claim and by the Supreme Court in the Sherrill case

and based his laches ruling on the undisputed facts developed in those cases.

Id. at *7 ("the undisputed facts as developed by the parties and in Second Circuit and

Supreme Court precedent require the Court to grant the Defendants' Motion for summary

judgment and dismiss the Plaintiffs' possessory land claims").

The Mohawks should therefore be allowed to submit evidence of relevant facts. In an

earlier ruling in this case in which the Court struck the defense of laches as it pertained to

liability but not as it pertained to damages, the Court recognized the factual nature of the

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., B.V., 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).


10

Canadian St. Regis Band of Mohawk Indians v. New York, 278 F.Supp.2d 313, 333

(N.D.N.Y. 2003). Because facts are essential to the laches determination we ask this court

to convert the Defendants' motions to requests for summary judgment and assess them

accordingly.

3. Summary Judgment Standard

Summary judgment is appropriate if there is no genuine issue of material fact

requiring a trial and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(c). "A dispute regarding a material fact is genuine 'if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party." ' Lazard Freres & Co. v.

Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir. 1997) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986); Celotex Corp. v. Cadrett, 477 U.S. 317, 322 (1986).

"The trial court's function in deciding such a motion is not to weigh the evidence or resolve

issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all

inferences in favor of the non-moving party, a rational juror could find in favor of that party."

Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

Here, there are material facts in dispute and the evidence presented by the Mohawks

precludes ruling for the Defendants as a matter of law. The Tribe and MNCC have submitted

a Response to Statement of Material Facts to assist the Court in identifying the factual

disputes.

B. The Defendants Are Not Entitled to Judgment on All Mohawk Claims Based on the Relief Pled in the Mohawks' Complaints

In their motions, the Defendants emphasize the remedies sought by the Mohawks, in

particular "the remedies of dispossession or ejectment." State Memo. at 16. See also NYPA


11

Memo. at 1; Muni. Defs. Memo. at 17. The Defendants rely almost entirely on the ejectment

remedy and forecasts of doom to justify the dismissal of the Mohawk claims. The

Defendants argue that because the complaints filed two decades or more ago included

requests for a declaration that the Mohawks own and are entitled to possess lands taken from

them in violation of the Indian Non-Intercourse Act and sought a restoration of these lands at

a time when such relief appeared to be permitted by existing case law, the Mohawks are now

entitled to no relief of any kind whatever and their underlying claims must be dismissed in

their entirety. State Memo. at 6, 15; NYPA Memo. at 11 n. 4, 11-12, 14; Muni. Defs. Memo.

at 5-6.

The complaints in these consolidated cases were filed long before the rulings in the

Sherrill and Cayuga cases upon which the Defendants rely, and so were not and could not

have been drafted with those decisions in mind. Under these circumstances, the Court should

not rest its decision on the factual allegations of the complaints alone, but should consider the

factual evidence submitted by the Mohawks to show that they can demonstrate facts entitling

them to some, if not all, of the relief pleaded in their claims.

The Mohawks acknowledge that under the Sherrill and Cayuga decisions, as well as

this Court's earlier decision in Cayuga X, ejectment is not a practical or viable remedy for the

Mohawks' land claims and do not seek to have this Court impose this remedy. The lack of

viability of that remedy, however, is not fatal to the Mohawks' claims, because their

complaints can "only be dismissed if it appears beyond doubt that the [Mohawks] can prove

no set of facts in support of [their] claim which would entitle [them] to relief." Patel v.

Searles, 305 F.3d at 135 (internal quotation marks omitted). Sherrill did not overrule the

Supreme Court's decision in County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985)


12

(Oneida II); see Sherrill, 455 U.S. at 221 ("In sum, the question of damages for the Tribe's

ancient dispossession is not at issue in this case, and we therefore do not disturb our holding

in Oneida II."); see also Cayuga, 413 F.3d at 274. Thus, to succeed in their motions, the

Defendants must show not just that the specific remedy of ejectment has been pled and that

remedy has been determined by the Second Circuit to require dismissal, but also that the

Mohawks are entitled to no relief under any set of facts the Mohawks may be able to prove.

This standard is mandated not only by Rules 12(c) and 56(c), but also by Rule 54(c),

which requires a court (in a non-default judgment) to award a plaintiff the relief to which he

is entitled, regardless of the pleading. F.R.Civ.Pro. 54(c) provides that "Except as to a party

against whom a judgment is entered by default, every final judgment shall grant the relief to

which the party in whose favor it is rendered is entitled, even if the party has not demanded

such relief in the party's pleadings." (emphasis added). Under Rule 54(c), the Mohawks'

prayers for relief are largely irrelevant, as the relief to be awarded depends not upon the relief

prayed for, but the relief to which the Mohawks are entitled, whether or not they have pled

such relief. See, e.g., United States ex rel. Bergen Point Iron Works v. Maryland Casualty

Co., 384 F.2d 303, 304 (2d Cir. 1967) ("There is of course no requirement that the plaintiff

request in his complaint the specific relief which is eventually granted."); Gins v. Mauser

Plumbing Supply, 148 F.2d 974, 976 (2d Cir. 1945) ("particular legal theories of counsel

yield to the court's duty to grant the relief to which the prevailing party is entitled, whether

demanded or not."); Donovan v. Burger King Corp. 675 F.2d 516, 520 (2d Cir. 1982)

(upholding award of relief broader than that requested by the party); see also 10 Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2664 (3d ed.

1998).


13

Moreover, the Mohawks can always seek leave to amend the complaints to conform

to current law. But it also follows from the above that it would be a "futile and meaningless

gesture" for the Mohawks to amend their complaints to strike the ejectment remedy.

Schwartz v. Eaton, 264 F.2d 195, 197 (2d Cir. 1959) (district court's striking of a portion of

plaintiff's prayer for relief was "surely a futile and meaningless gesture" because "the trial

judge at the close of the case will still be obligated to grant the parties the relief to which they

prove themselves entitled. F.R. 54(c)."); see also Farmer v. Arabian American Oil Co., 285

F.2d 720, 722 n.2 (2d Cir. 1960) (amendment of the demand for relief is "superfluous"

because the court must grant whatever relief is proper).

In any event, each of the Mohawk complaints contains a prayer for "such other relief

as the Court deems just," or words to that effect. Cplt. I at 12; Cplt. II at 10; Cplt. III at 23.

Given this broad request for relief, the Mohawks simply ask that this Court exercise its

authority to fashion a remedy suitable to the claims.5

5 For example, for the Islands claim, this court could defer to FERC for remedial action rather than awarding a remedy directly. If this Court finds that title was taken in violation of the Nonintercourse Act, based on FPA rules and the relicensing conditions, it would be up to FERC to resolve the remaining issues per Article 418 of NYPA's license. See discussion below at pp. 27-29. For the Mainland Claim, if this Court finds that any part of the claim is not disruptive, then there is no bar to the award of money damages as to that part of the claim. The Sherrill Court made clear it was not precluding an award of damages. 544 U.S. at 221. See below at p. 19. In Cayuga, the court precluded money damages because of the connection of the underlying money claim to the claim for possession. 413 F.3d at 278. The Court found that since the ejectment claim was disruptive and barred by laches, then the money damages which were based on a barred possessory claim would be barred as well. See below at p. 55. The court need not award trespass damages per se, but it could award compensatory damages without tying them to title. In Yankton Sioux Tribe v. United States, 272 U.S. 351 (1926), the Supreme Court agreed that in an instance of impossibility to return land to a tribe, the tribe was otherwise entitled to monetary damages. See also Felix v. Patrick, 145 U.S. 317, 334 (1892) (money damages awarded); United States v. Imperial Irrigation District, 799 F.Supp. 1052 (S.D.Cal. 1992) (same).


14

C. The Sherrill and Cayuga Courts Set Forth a Standard by Which this Court May Judge If a Claim or Remedy is Disruptive.

The Cayuga and Sherrill rulings establish a two-part approach to determining

whether equitable defenses such as laches, acquiescence, and impossibility apply to Indian

land claims and whether the application of such defenses mandates dismissal. Under Cayuga

and Sherrill, a court must first determine whether the claim at issue is disruptive. This

determination is to be based on the particular factual considerations articulated by the

Supreme Court in Sherrill and adopted by the Second Circuit in Cayuga. If the claim is not

considered disruptive pursuant to this analysis, equitable defenses like laches do not apply. If

the claim is considered disruptive, laches may be applied and the court must determine,

pursuant to well-established common law rules, whether laches bars the claim. See infra Part

V. Neither Sherrill nor Cayuga provides a basis for this Court to simply assume that the

Mohawk land claims are disruptive or presumptively barred by laches.6

In addition, for the Mainland claim, if this court finds that any part of the claim to the Mainland areas is not disruptive due to the significant factual differences in the land claim area population and ownership makeup, this Court could declare that these particular lands were never removed from the reservation by the illegal sales and that underlying title remains with the Mohawks. In so doing, it could permit those Mohawks who so choose to have their lands become part of the reservation subject to tribal jurisdiction. Indeed some Mohawks have already chosen to deed their lands to the Tribe, see Fisher Dec., ¶ 5, Attachment Map C, SRMT/MNCC Exh. 1 and the Tribe already exercises various forms of tribal governmental authority over these lands and others in the claim area. See discussion below at pp. 39-41; Ransom Dec., at ¶ 2, SRMT/MNCC Exh. 4. The Court may also limit the ability of the Mohawks to remove any current land owners, Indian or non-Indian, and require that the Mohawks purchase the land on the open market, giving the Mohawks a right of first refusal much like the right of preemption once held by the State. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 670 (1974) (Oneida I). This Court's power to fashion an equitable remedy that is not disruptive nor unfair to current landowners is sufficiently broad to allow these remedies. 6 Judge Kahn's recent ruling in the Oneidas' land claim is not to the contrary. In Oneida, the court relied on the Supreme Court's determination that the Oneidas' claim was inherently disruptive, and then examined the factual considerations laid out in Sherrill and


15

1. The Sherrill and Cayuga Courts Both Focused on Specific Facts to Support a Finding of Disruption.

In City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), the Supreme Court

was asked to rule on the extent to which the City of Sherrill could tax land owned by the

Oneida Indian Nation. The Oneidas had recently purchased land in its land claim area in an

effort at self-help to find an alternative remedy for its land claim. The Nation took the

position that after purchase the Tribe had renewed sovereign authority over the land, and it

therefore was not subject to state or local jurisdiction. 544 U.S. at 211-213, 219.

The Court considered the specific question of "whether 'equitable considerations'

should limit the relief available to the Oneida." Id at 213. The Court held that the Oneidas'

chosen remedy, reasserting sovereign authority over land it had purchased in fee, was barred.

The Court arrived at this conclusion by first determining that the Oneida remedy was

disruptive. Having so concluded, it held that "[t]he long lapse of time, during which the

Oneidas did not seek to revive their sovereign control through equitable relief in court, and

the attendant dramatic changes in the character of the properties, preclude the OIN from

gaining the disruptive remedy it now seeks." Id. at 217.

In Cayuga, the Court reasoned that under Sherrill, equitable doctrines such as laches

could "in appropriate circumstances, be applied to Indian land claims." 413 F.3d at 273.

Cayuga to find that laches barred some of the Oneidas' claims. 2007 WL 1500489 at * 3-* 7. The ruling confirms the central importance of the factual inquiry required by Sherrill and Cayuga for the application of laches to Indian land claims and highlights the stark factual differences between those claims and the claims of the Mohawks at issue here. In any event, to the extent Judge Kahn’s analytical approach differs from that advocated here, that approach is not binding on this court. See, e.g., Hart v. Massanari, 266 F.3d 1155, 1174 (9th Cir. 2001) ("[T]he binding authority principle applies only to appellate decisions, and not to trial court decisions"); American Silicon Technologies v. U.S., 261 F.3d 1371(Fed. Cir. 2001) (judges of federal district not bound by one another’s decisions).


16

When the Cayuga court held that "possessory land claims of this type [disruptive] are subject

to the equitable considerations discussed in Sherrill," it had under consideration a specific set

of facts that led it to conclude that the Cayuga claim met the Sherrill test of disruptiveness in

the first instance. 413 F.3d at 275 (emphasis added). Having concluded the claim was

disruptive, the court held it was "subject" to laches. 413 F.3d at 277, 278; see also id. at 274

("equitable defenses apply to" 'disruptive' "Indian claims more generally.") Only then did the

court conclude that the claim was actually barred by laches based on the specific facts of the

case. Id. at 277.

Thus, while the Defendants contend that all Indian land claims are inherently

disruptive pursuant to Cayuga, the Cayuga court's suggestions to that effect were based on

the virtually identical factual settings of the Cayuga and Sherrill cases. The Sherrill court

measured disruption by the non-Indian character of the area, 544 U.S. at 215, the history of

non-Indian governmental control over the area, id. at 214, and the long passage of time that

created settled expectations. Id. at 215-216. The Cayuga court followed suit by looking to

the settled ownership patterns in the area, i.e., the extent of non-Indian population and

ownership, 423 F.3d at 275, 277; the development of the area and the possibility of impacting

local governance, id. at 277; and the passage of time prior to the tribe's bringing suit. Id. It

was these facts that led the Cayuga court to "conclude that the [Cayuga] case must be

dismissed because the same considerations that doomed the Oneidas' claim in Sherrill apply

with equal force here." Id. These same considerations and the virtually indistinguishable

facts of the Cayugas' and Oneidas' land claims--tribes seeking the return of large swaths of

land of largely non-Indian character--led Judge Kahn to rule in Oneida that "in light of the

factors established by the Second Circuit, the Court concludes that the factual record


17

developed in this case and the Supreme Court's findings in Sherrill warrant dismissal of the

Plaintiffs' possessory land claims…" 2007 WL 1500489 at *5. As discussed below, the

relevant facts in the Mohawk case are fundamentally different and do not support a finding of

disruption for laches purposes.

2. In Sherrill, the Court Used Reservation Diminishment Cases as a Touchstone for Measuring Disruption and the Impact in the Claimed Area.

The Sherrill court did not define "Indian character" or "settled expectations." It did,

however, look to Indian reservation diminishment cases to identify those factors as relevant

to its inquiry into whether or not the Oneidas actions were disruptive. The Court pointed to

"jurisdictional history" and "the current population situation" as factors used to demonstrate

diminishment. 544 U.S. at 215. "In the different, but related, context of the diminishment of

an Indian reservation . . .'the longstanding assumption of jurisdiction by the State over an

area that is over 90% non-Indian, both in population and land use' may create "'justifiable

expectations'" that tribal authority has been displaced by state jurisdiction and cannot be

revived. Id. at 215 (quoting Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604-605 (1977)

and citing Hagen v. Utah, 510 U.S. 399, 421 (1994)). The Court quoted Solem v. Bartlett,

465 U.S. 463, 471-472 (1984), another diminishment case, for the proposition that "a

checkerboard of alternating state and tribal jurisdiction" in an area where an overwhelming

majority of the population and land ownership was non-Indian "would 'seriously burde[n] the

administration of state and local governments.'" 544 U.S. at 219-220.

In assessing the Oneidas' case in Sherrill, the Supreme Court cited to a few specific

facts similar to those of the diminishment cases and found they also supported a finding of

disruption, including the fact that the area and its inhabitants "had a distinctly non-Indian

character" and that "since the middle years of the 19th century, most of the Oneidas have


18

resided elsewhere." Id. at 202. The Court noted that the Oneidas failed "to seek to regain

possession of their lands" until the 1970's, id. at 216, and that the Oneidas had never made

any attempt to assert its jurisdiction over the lands until they were recently acquired in 1997

and 1998. Id. at 202.

3. Having Decided the Remedy was Disruptive, the Supreme Court in Sherrill Relied on Equitable Principles To Determine if the Remedy Should be Barred.

Having concluded that in these specific factual circumstances the remedy sought by

the Oneidas would be too disruptive, the Court declared that remedy barred. The Court called

upon three equitable principles--laches, impossibility and acquiescence--as examples of legal

principles that draw upon the same factors and may be applied to preclude relief. Notably,

the Sherrill Court did not expressly hold the claim was barred by laches or any one of these

other principles. The Court said instead that the equitable principles that were evoked or

illustrated in these doctrines justified precluding the specific relief sought by the Oneidas.

First, the Court reasoned that the passage of time often justifies precluding relief

based on "one side's inaction and the other's legitimate reliance...", citing laches. Id. at 217.7

The Court further found that the belated assertion of sovereignty and settled expectations as

to jurisdiction can lead to the preclusion of relief under the doctrine of acquiescence. Id. at

218. Finally, the Court looked to impossibility to preclude a remedy that would uproot

citizens and create a checkerboard of jurisdiction, citing to the diminishment cases. Id. at

7 The Sherrill Court relied on Felix v. Patrick, 145 U.S. 317 (1892), where the Court held that the heirs of an Indian could not establish "a constructive trust over land their Indian ancestor had conveyed in violation of a statutory restriction" three decades previously, during which time the lands had greatly changed in value, and a large portion of the tract had been platted as an addition to the City of Omaha. 544 U.S at 217.


19

219.8 The Court cited as a key fact that the Oneidas' parcels were scattered throughout two

counties and were located in an area that was "overwhelmingly populated by non-Indians."

Id. at 219; see also, id. at 211 (finding that the area was 99% non-Indian). The Court

concluded:

"In sum, the question of damages for the Tribe's ancient dispossession is not at issue in this case, and we therefore do not disturb our holding in Oneida II. However, the distance from 1805 to the present day, the Oneida's long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generation, evoke the doctrines of laches, acquiescence and impossibility, and render inequitable the piecemeal shift in governance this suit seeks to unilaterally initiate."

Id. at 221 (emphasis added).

4. In Cayuga, The Second Circuit First Found Disruption Before Applying Equitable Considerations.

When the Second Circuit applied the Sherrill decision to the claim of the Cayuga

Indian Nation in Cayuga Indian Nation v. Pataki, 413 F.3d 266 (2d Cir. 2005), the court

considered the context of a claim where the Tribe sought "possession of a large swath of

central New York State and the ejectment of tens of thousands of landowners." 413 F.3d at

275. The Court concluded that the possibility of a disruption in governance of the land if the

tribe was awarded possession, the lapse of time during which no relief was sought by the

Tribe and because of that failure to act, the dramatic change in the character of the land since

it was lost, required a finding that the claims for possession were "disruptive." Id. at 274. As

such, they were "subject to the equitable considerations discussed in Sherrill." Id. at 275

(emph. added).

8 The Sherrill Court relied upon Yankton Sioux Tribe v. United States, 272 U.S. 351 (1926), to support its conclusion that it was impracticable to return Indian control to land that generations ago had passed into the possession of innumerable non-Indian purchasers. 544 U.S. at 219.


20

Having found the claims subject to laches, the Court then cited to similar facts such as

the passage of time, the non-Indian character of the land, and the impracticability of returning

the land to Indian control, to hold that the claim for possession was barred by laches and

should be dismissed. Id. at 277. In so doing, the Court acknowledged that laches is a fact-

based inquiry. Rather than remanding the case to the district court for a hearing, however, it

relied on the earlier rulings of the district court to find that the Cayugas delayed in bringing

their claim and that to allow the claims to go forward would substantially prejudice the

defendants. Id. at 279-280.

In order to apply Sherrill and Cayuga to the instant case, therefore, this Court should

first consider whether the Mohawks' claims are sufficiently disruptive to warrant the

application of the laches defense, using the factors identified by the Sherrill and Cayuga

Courts to analyze the specific facts of this case. Given the stark factual differences between

the Mohawk claims and those at issue in Sherrill and Cayuga, application of laches is not

warranted here.

Part II -The Islands Claim

This claim concerns New York's illegal taking of three Mohawk-owned islands in the

St. Lawrence River. The State took these islands without even the fiction of a state "treaty"

to purchase the land from the Mohawks and without the approval of the federal government.

The Islands at issue -- Barnhart Island, Baxter Island (now known as Croil Island) and the

Long Sault Islands -- will be referred to collectively as "the Islands."


21

A. Statement of Facts

1. History of the Establishment of the Reservation.

The Akwesasne Mohawks have lived along the northern border of New York and the

St. Lawrence River since at least the middle 1700's, having moved north away from non-

Indian incursions into their territory in the Mohawk Valley. By the late 1700's, non-Indian

land speculators were making efforts to purchase blocks of land in the Mohawk territory

along the St. Lawrence River. In 1791, a land speculator named George Macomb purported

to purchase from the State of New York 3.6 million acres of land along the St. Lawrence

River, including the land held by the Mohawks. A six mile square surrounding the Mohawk

Village at St. Regis was excluded from the purported purchase and confirmed to the

Mohawks. The Mohawks challenged the sale, which purported to strip them of much of their

land. After some negotiations, the State and the Mohawks entered into the federally

approved 1796 Treaty with the Seven Nations of Canada, May 31, 1796, 7 Stat. 55, which

recognized as the Mohawk reservation a six mile square tract (some 24,900 acres), along

with two one-mile squares, and land along the Grasse River. Declaration of Peter Whiteley,

¶ 18, Appendix to the Memorandum in Opposition filed by the Mohawk Council of

Akwesasne (hereinafter "Whiteley Dec."). The greater part of this reservation, some 14,500

acres, remains intact today and is the home of the government of the St. Regis Mohawk Tribe

in the United States.9

9 In 1814, after the War of 1812, the northern boundary between the United States and Canada was drawn. The boundary divided the reservation into a Canadian or British side and an American side, although the Mohawks residing on the reservation did not and have never fully recognized the boundary. Thus, a portion of the reservation created by the 1796 Treaty is now in Canada. The St. Regis Mohawk Tribe governs the New York reservation. The Mohawk Council of Akwesasne governs the Canadian side and the Mohawk Nation Council of Chiefs has membership and authority on both sides.


22

2. The History of Mohawk Ownership of the Islands.

Mohawk use and occupancy of lands along the St. Lawrence included use of the

islands in the river for hunting, fishing and farming. The Mohawks also historically leased

the islands to non-Indians as a way of retaining title while generating income. Both before

and after the signing of the 1796 treaty, the Mohawks continued to use, occupy, and lease out

the islands. Whiteley Dec., ¶ 22.

Mohawk rights to the islands were not given up in 1796, when the U.S. recognized

the Mohawk reservation on the mainland, because the islands were believed to be in British

North America, i.e., Canada. In 1814, after the War of 1812, the United States and Great

Britain concluded the Treaty of Ghent, which set up an international commission to survey

and establish a precise boundary between British North America and the United States. The

Treaty specifically provided that if by means of the survey, any island that had previously

been considered in one country came to be in the other, property rights would not be

disturbed. Treaty of Ghent, Dec. 24, 1814, 8 Stat. 218, 222.

Under Article Eight of the 1814 Treaty, the United States expressly promised to

restore to Indian tribes "all the possessions, rights, and privileges, which they may have

enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such

hostilities . . . ." 8 Stat. at 222-223. In 1823, the Commission determined by survey that the

Islands were in the United States. Whiteley Dec., ¶ 20. Pursuant to the treaty provisions and

the history of Mohawk use and occupancy, the Islands then came into the United States

already subject to Mohawk beneficial ownership, as recognized by the British Crown.


23

Despite these terms of the Treaty, in 1823 the State of New York purported to convey

Barnhart and Baxter Islands to a land speculator named Ogden. Whiteley Dec., ¶ 20, p. 10.

There is no record of the Long Sault Islands having ever been conveyed.

In 1856, the Mohawks sought to establish their title in the islands and asked the State

government for back rents. Id. The State had previously compensated the Barnhart family

for the loss of their leasehold interest, a lease granted by the Mohawks. The State Assembly

issued a report recognizing the Mohawk historic ownership of both Barnhart and Baxter

Islands and passed legislation to pay the Mohawks back rent at $20 per year for certain years,

and $1000 as additional compensation. The Mohawks were satisfied that they had

established their ownership of the islands. Id. The State, on the other hand, took the position

that it had acquired title by this payment and that its action extinguished Mohawk title. Id.

The fact that the State had no such authority to take title is, of course, the issue at the core of

this lawsuit.

3. The Mohawks Challenged the Taking of The Islands.

The Mohawks have never acquiesced in the sale of the Islands. The record suggests

that the Mohawks continued to use the islands for fishing and hunting, even while leased to

non-Indians, Whiteley Dec., ¶ 21, and there were numerous protests over fishing rights.

Whiteley Dec., ¶ 38, p. 64.

As described above, in 1856, the Mohawks sought and received recognition of their

title by the State. Whiteley Dec., ¶ 25. The Mohawks believed that the promised 1856 State

payment was a recognition of an ownership interest through payment of back rents, which is

what the Mohawks sought, not extinguishment of title. In response to the State's position to


24

the contrary, the Mohawks contended from that time forward that the purported taking of the

Islands by the State was invalid. Whiteley Dec., ¶ 38.

In 1930, the Six Nations petitioned Congress for redress regarding all illegally

transferred lands, including the islands. Whiteley, ¶ 38, p.68. The Mohawks' petition

pointed out that the State had illegally transferred the islands to the St. Lawrence Power

Company and that "no lease money has been paid [to the Mohawks] for over 60 years," thus

indicating the continuing Mohawk belief that they had never lost title to the islands.

Whiteley Dec., ¶ 38, p. 69. The Senate did not act on the petition. A similar petition was

filed in Albany in 1935. Id. ¶ 38, pp. 70-71.

When plans for the current power project were announced, in 1954, twenty years after

the petitions to Congress, the issue erupted again and the Tribe immediately brought suit in

state court in St. Regis Mohawk Tribe v. New York, 5 N.Y.2d 24 (N.Y. 1958). In that suit, the

Tribe claimed that the State had illegally appropriated the land for the proposed power

project, land to which the Mohawks continued to hold title. The Tribe argued that the 1856

payment was for lost lease income, not for title. Id. at 39. The Tribe also argued that in any

event it had not been paid. Even if it had, the payments were not valid to extinguish title

since the lands were protected and any payment made by the State did not meet the terms of

the Nonintercourse Act. Id. Therefore, the State's claim to title was void.10 The State court

10 The State and NYPA argue that this lawsuit was not one for "possession." State Memo. at 15, n. 8 and NYPA Memo. at 10. On the contrary, the Tribe alleged in the lawsuit that it had never lost title because the transaction by which the State claimed it took title was void under the Nonintercourse Act. 5 N.Y.2d at 39. The Tribe expressly claimed rights to "immemorial possession" and simply argued that if the State intended to use the land in the power project, it had to pay for its current possessory rights. Id. at 28. In other words, the Tribe was not seeking possession because it claimed it still had possession in the form of original title and the accompanying right to use and occupancy.


25

rejected all of these contentions and ruled that the Mohawks had been paid for title

previously and that the payment was legal and unchallengeable. The Court cited to the recent

ruling in U. S. v. Franklin County, 50 F.Supp. 152 (1943), for the proposition that the

Nonintercourse Act did not apply to the State of New York. Id. at 39-40. The Supreme

Court overturned this holding in 1974 in Oneida I.

4. NYPA's Use of the Islands.

Since 1953, NYPA has been licensed by the Federal Energy Regulatory Commission

to operate the Saint Lawrence Hydro-electric Power Project. Barnhart Island is the anchor

for the Robert Moses Dam and for various other NYPA facilities. Even so, the hydro-electric

power facility on Barnhart Island occupies a small part of that island, with nearly all of the

rest designated as a State Park. By NYPA's own admission, about 75% of the Park is

undeveloped land, comprised primarily of forested uplands, open uplands and wetlands. See

Land Management Plan, St. Lawrence-FDR Power Project, at 18, and attachment to the

report, Town of Massena-Land Use and Land Cover Map, Figure 3-1c, SRMT/MNCC Exh.

7.11

While both Croil Island and the Long Sault Islands are within the power project

boundaries, they are both undeveloped, uninhabited, and do not hold any facilities. Id. at 17-

19, 33 and Figure Map 3-1c. Defendants concede that Long Sault and Croil are primarily

forest and brush covered. Id. at 16. See also Figure Map 3-1b for Croil Island,

SRMT/MNCC Exh. 7.

11 This information can also be found at: http://www.stl.nypa.gov/Land%20Management%20Plan/St.%20Lawrence%20LMP%20final.102604.html.


26

B. Argument - The Mohawk Islands Claim Is Not Disruptive and Therefore Is Not Subject to the Equitable Considerations That Would Justify Dismissal.

The factual and legal circumstances of the Mohawk Islands Claim differ significantly

from Sherrill, Cayuga or Oneida. Resolution of those cases turned solely on judicial

interpretation of the Nonintercourse Act. The Mohawk Islands Claim requires consideration

of an additional act of Congress---the Federal Power Act -- which prevents the disruption the

Defendants claim will ensue.

1. Through the Federal Power Act, Congress Has Enacted a Remedial Scheme Whereby Tribes Are Prevented from Disrupting the Operation of Projects Located on Tribal Lands.

NYPA is licensed to operate under the Federal Power Act, which establishes the

federal policy on use of private, public, and Indian lands for power projects. While not

subject to condemnation, under federal law, Indian land may be used for such projects so

long as such use is not inconsistent with the purpose of the reservation. If the land is used,

then the Indian owners are entitled to an annual payment to the extent the land contributes to

power production. Section 10(e) of the Federal Power Act, 16 U.S.C. 803(e), provides in

part:

All licenses issued under this Part shall be on the following conditions:

(e) . . . . That when licenses are issued involving the use of . . . tribal lands embraced within Indian reservations the Commission shall, . . . in the case of such tribal lands, subject to the approval of the Indian tribe having jurisdiction of such lands as provided in [25 U.S.C. 4761], fix a reasonable annual charge for the use thereof . . . .

The section does not provide tribes with a right to prevent the use of its lands, but

rather grants tribes as well as licensees a right to judicial review if the annual payment set by


27

the Commission is unreasonable. See Re Montana Power Co., 38 FPC 766, 775 (Oct. 4,

1967) aff'd sub nom. Montana Power Co. v. FPC, 459 F.2d 863 (D.C. Cir. 1972).

NYPA argues in its motion to dismiss that an award of title to the Mohawks would

lead to ejectment, thus causing a major disruption to its customers. NYPA Memo. at 13-14.

But as discussed above, the Mohawks do not contend that ejectment will be forthcoming.

NYPA fails to mention that under the FPA, it already has permission to operate on

this land, even if it is determined to be Indian lands, and that it cannot be removed. During

the recent relicensing proceeding for the power project, the Mohawks, NYPA, and the

Department of the Interior expressly addressed the issue of potential Mohawk ownership of

the islands. NYPA repeatedly argued to FERC that the Mohawks had no legal interest in the

land that would be recognized by a court or that would qualify as a reservation under the

FPA. Even so, FERC recognized the Indian interest in the area in the relicensing order:

"As previously noted, three entities from the Mohawk Community have Intervened in this proceeding. [Lists the Mohawk plaintiffs in this case]. The Mohawks have a particular interest in this proceeding because the Project is located in and near historical Mohawk territory, the SRMT reservation boundary is close to the Project boundary, and the Project's location on the St. Lawrence River bisects the Mohawk communities on either side of the international border."

Order Approving Settlement Agreements, Dismissing Complaints, and Issuing New License,

Project No. 2000-036, Dkt No. EL03-224-000, (FERC October 23, 2003) at 49, NYPA

Exh. 8.

When FERC granted the new license, it required environmental protections for the

Mohawks at the request of Department of the Interior. FERC also specifically reserved its

"authority to establish reasonable annual charges for the use of subject lands should they be

determined to be reservation lands during the term of the new license." Id. at 60. Article 418

of the NYPA license, id., at 97 provides:


28

"Authority is reserved to the Commission to require the Licensee to implement such conditions for the protection and utilization of the St. Regis Mohawk Tribe Reservation as may be provided by the Secretary of the Interior pursuant to Section 4(e) of the Federal Power Act. Authority is also reserved to establish a reasonable charge for the use of federal reservation lands pursuant to Section 10(e) of the Federal Power Act. Exercise of these authorities is contingent on resolution of the Mohawk land claim litigation pending the issuance date of this license in the United States District Court for the Northern District of New York, Civil Action Nos. 82-cv-829, 82-cv-1114, 89-cv-783, in such manner sufficient as to cause the land and waters subject to the referenced land claims to become Federal Reservations for the purposes of the Federal Power Act."

With this condition, even if the Mohawks succeed in their claim, NYPA will not be

ejected or lose its license to provide power to the State of New York. Rather its interest in

the project will be protected through the FPA and FERC's exercise of jurisdiction. Thus,

even if the Mohawks establish they have never lost title to the islands, it does not follow that

the NYPA power project will be disrupted.12 While the Federal Power Act provides

reasonable compensation to tribes, it does not permit tribes to interfere with the production of

electricity from federally licensed projects.13

12 Article 423 of the license gives NYPA the authority to permit usage of privately owned lands within the Project boundary that are consistent with the purposes of the Project and its land use plan. This authority assumes that there are lands within the boundaries of the Project for which the use and occupation, and even the holding of title, will not impede or deter the purposes of the Project. In fact, there are already private lands within the Project boundaries. See Land Use Plan, pp. 6, 43-46, SRMT/MNCC Exh. 7. 13 Nor is this claim similar to the claim for money damages for trespass that was rejected by the Cayuga Court and more recently by Judge Kahn in Oneida. In Cayuga, the court made clear that the money damages were tied to the ejectment claim. Since that claim was disruptive and found to be barred by laches, the trespass money damages, which were based on the already-barred claim for possession, were barred as well. 413 F.3d at 278 ("the trespass claim ... is predicated entirely upon the plaintiffs' possessory land claim. ***Because the trespass claim...depends on the possessory land claim, a claim we have found subject to laches, we dismiss the plaintiffs' trespass claim [as well].") See also Oneida, 2007 WL 1500489 at *8. Here, Congress has provided for annual payments as part of a detailed remedial scheme designed to minimize disruption. Where Congress has spoken, the courts are not free to ignore its chosen remedy.


29

If the Mohawks' claim to title is not disruptive per the FPA, it should not be subject to

any of the equitable considerations that might bar it.14 If the title claim is not barred, then

any claim that the Mohawks would have to annual payments in a proceeding before FERC is

not barred either. The annual payments provided for under the FPA are a reflection of

Congress' efforts to prevent disruption to the power project. Congress has already

determined that paying tribes for water projects is not unduly disruptive to power projects.

The FPA presupposes continuing and future occupation of the Islands by NYPA based on

payments to be determined under a statutory formula.15

2. The Mohawks Have Repeatedly Asserted Their Right to Title in the Islands such that NYPA Could Have No Settled Expectation of Unchallenged Title.

Not only does the Federal Power Act remove the Islands Claim from the reach of

Sherrill and Cayuga's disruption analysis, the claim is not disruptive because it does not

threaten any settled expectations.

14 The Court in Oneida agreed that some forms of Indian land claim survive the Cayuga ruling. 2007 WL 1500489 at *8. In Oneida, a non-possessory claim for damages survived. Here, the Islands Claim should survive as well because physical possession would remain with NYPA without interruption under the auspices of the FPA. 15 NYPA may assert that annual payments will be disruptive since it will place a financial burden on the company. This contention should be rejected. First, FERC placed a condition in NYPA's license, which it has accepted, that it may be subject to these charges. Given NYPA has had notice of the possibility of a tribal interest and the existence of the condition for some time, NYPA has had an opportunity to plan what it will do in terms of capital spending and rate changes. Moreover, this land claim is not a claim for annual payments. It is a claim for title. The FERC will have to sort out the consequences of Mohawk ownership of title and it will finally determine if the Mohawks are entitled to annual payments pursuant to the Federal Power Act. NYPA will have a full opportunity to argue against the application of annual payments and therefore there is no assurance that NYPA will be subject to the charges. It is simply premature to assume that NYPA will suffer monetary injury if the Mohawks take title. What is clear at this point, however, is that a determination of Mohawk title will not disrupt NYPA possession or operations.


30

As outlined above at pp. 23-25, between 1856 and the 1950s, the Mohawks

repeatedly complained to the federal government and the state that they had not lost title to

the islands. These facts show that the Mohawks did not wait until the filing of this case to

assert an interest in the NYPA lands, long after the power project was built. Rather, the

Mohawks made the claim earlier in a number of different contexts. The Mohawks objected

in 1954 at the onset of the project, which was the appropriate time, and challenged NYPA's

use of their land in the project without the required compensation. But they were turned back

on legal grounds.

The lapse of time from the rejection of the Tribe's claim in 1958 to the filing of this

claim in 1983 is not great and in any event, the Mohawks could not have been expected to

file another suit until a viable legal theory emerged. Just ten years after the final ruling in St.

Regis Mohawk Tribe v. New York, the Oneidas sought to prove such a theory in their test

case. The Oneidas' legal theory was upheld by the Supreme Court in 1974, Oneida Indian

Nation v. County of Oneida, 414 U.S. 661 (1974), putting NYPA and the State on notice that

their title could be challenged under the Nonintercourse Act. See discussion below at pp. 59-

63 regarding the ability of the Mohawks to bring suit to challenge the taking of the islands.

Further, when NYPA sought to renew its license to operate, it did not and could not

have acted with the settled expectation that it held unchallenged title to the islands. Thus,

any argument that NYPA's power project was built and is currently being operated based on

the settled expectation that its title is valid cannot be sustained. Neither, reliance on inaction

by the Mohawks nor disruption of NYPA's activities can be shown here, and thus neither

provides any justification for dismissing the Islands Claim.


31

3. In Addition, Some of the Islands Do Not Meet the Disruption Test Because They Are Uninhabited.

Even if this Court does not agree that the FPA precludes a finding of disruption to

NYPA's or the State's interests in the Islands, the claims are still not unduly disruptive for

Sherrill and Cayuga purposes. According to NYPA's own land use management plan, the

Long Sault Islands and Croil (formerly Baxter) are uninhabited and undeveloped. See

discussion above at p. 25. Neither holds any key structures of the project or any significant

structures of any kind. Id. The award of title to these islands would have little if any impact

on the production of power16 and would not threaten the displacement or settled expectations

of anyone. Neither the State nor NYPA may claim significant investment in infrastructure or

development of these lands.

Furthermore, most of Barnhart Island is a State Park of which 75% is uninhabited

forest lands. See discussion above at p. 25. Clearly, use of these lands, and title in others

presents no significant impediment to NYPA activities and need not disrupt power

production.

Part III - The Mainland Claim

The Mohawks' Mainland claim is based on a series of illegal purchases by the State of

New York of lands that were part of the original 24,000 acre reservation set aside by the

1796 Treaty. The Mainland claim can be divided into five areas: (1) the Hogansburg

Triangle, (2) a portion of the Town of Fort Covington, (3) the one mile square in the Hamlet

16 Indeed, as noted above, at p. 28 n.12, there are already other "nonessential" lands within project boundaries that are owned by third parties to whom NYPA has granted use permits, including permits for agriculture, mooring docks and other uses. SRMT/MNCC Exh. 7, pp. 43-45.


32

or Village of Fort Covington,17 (4) the one mile square in the Village of Massena, and (5) the

Grass River Meadows. Two of the areas--the Hogansburg Triangle and Fort Covington—

directly about the current 14,000 acre Mohawk reservation. The other three areas are within

close proximity. While non-Indians inhabit some of the claim areas, they are a minority

within the Hogansburg Triangle and the strong Indian character of the reservation permeates

that area.18 The area is majority Indian-owned and -occupied. The Fort Covington claim

area is of mixed Indian and non-Indian character and is rural in nature. There has been no

significant commercial development in this area and much of the land is vacant. Mohawks

and the Tribe own many parcels in Fort Covington, particularly along that portion of Fort

Covington directly adjacent to the reservation.

A. Statement of Facts

1. History of the Land Sales.

Between 1816 and 1825, the State purported to acquire specific tracts of reservation

land from the Mohawks. Initially, the Tribe simply leased the lands to local non-Indians.

Whiteley Dec., ¶¶ 22, 25. But the State soon sought to purchase the land outright. Id., ¶ 26.

The Mohawks were impoverished and were vulnerable to monetary offers for their land. Id.,

¶¶ 22, 26. While they succeeded in fending off efforts to purchase the bulk of their

17 We will use the term "Hogansburg Triangle" to refer to the area that was subject of the illegal state treaties of June 12, 1824, December 14, 1824, and September 23, 1825. As shown in Fisher Dec., Attachment Map B, SRMT/MNCC Exhibit 1, this area is a triangle cut out from and bounded on two sides by the recognized St. Regis Mohawk Reservation. See also id., Attachment Map C. The "Fort Covington" claim area is that area that was the subject of the Treaty of March 15, 1816 and does not include the Hamlet of Fort Covington, also known as the Village of Fort Covington or the Fort Covington Mile Square. Id., Attachment Map D. 18 The Mohawks concede that some of the land claim areas will not fit within the analysis applied to the Hogansburg Triangle and the Ft. Covington claim areas here.


33

reservation, through five separate transactions that took place between 1816 and 1825, none

of which was made in compliance with the Nonintercourse Act, the State and local land

speculators managed to purchase approximately 10,000 acres of the land guaranteed by the

1796 Treaty. Those purchases are detailed in the Whiteley Declaration, ¶ 27.

2. History of the Demographics and Land Ownership of the Area.

The St. Regis Mohawk reservation is 14,500 acres, roughly rectangular in shape, with

a 2000-acre triangle cut out of its southern side comprising the claim area known as the

Hogansburg Triangle. See Declaration of Donald Fisher, Attachment Map B and C,

SRMT/MNCC Exh. 1 (hereinafter "Fisher Dec."). At the time the reservation was

established, the St. Regis population numbered approximately 800, with roughly 400 on each

side of the border. (Unless otherwise noted, all statistics in this paragraph are from Whiteley

Dec., ¶ 29.) By 1852, the population was reported as approximately 1,120, with 632 on the

British side and 488 on the American Side. By the late 1800's the population had increased

on the American side to over 1,000. In 1885, it was reported that 1,870 Mohawks attended

the St. Regis Catholic Church. The total population on both sides of the reservation

numbered over 2,000 at that time. Both the New York St. Regis Annuity Rolls and the

Bureau of Indian Affairs reported the continuing presence of Mohawks on the reservation

and in the general area during this time period. These figures climbed steadily. In 1940, the

total number of Mohawks on the reservation was 2,550. By 1980, the combined enrollment

of both tribes was about 7,000. Whiteley Dec., ¶ 37, p.63. Today the current enrollment of

the St. Regis Mohawk Tribe is 12,217. Declaration of Patricia Thomas, ¶ 2 (hereinafter

"Thomas Dec."), SRMT/MNCC Exhibit 6. Today, 6,485 Mohawks are listed on tribal rolls

as living on or near the American reservation. Id. We understand that the enrollment of the


34

Mohawk Council of Akwesasne is 12,000 members. Of those, approximately 8,400 live on

the reservation on the Canadian side.

Many Mohawks continue to live in the areas that were illegally purchased by the

State, particularly the Hogansburg Triangle. On the ground, there is very little to indicate

any boundary between reservation and non-reservation land in the Hogansburg Triangle.

The population and land ownership data show that the Hogansburg Triangle is

overwhelmingly Native.

Based on the use of census block data, which is a data set collected in areas smaller

than the county or town level, the Indian population of the Hogansburg Triangle is estimated

to have been 72.1% of total population in 1990, and 75.7% in 2000. Declaration of

Dr. Charles Mann, ¶ 19, SRMT/MNCC Exh. 3 (hereinafter "Mann Dec.").19 The Indian

19 The Census Bureau does not treat the either the Hogansburg Triangle or the relevant portion of Fort Covington as separate census tracts for which data is available. Mann Dec., ¶ 12. Nonetheless, it is possible using census block data to estimate the population of those areas. Id., ¶ 13. Use of this data allowed the Mohawk expert Dr. Mann to estimate the total population and the Indian population for these areas. Id. Dr. Mann's methodology was to determine which "census blocks" were within the claims area, and to determine the population (total population and Indian population) for those areas, for the 1990 and 2000 decennial censuses. Mann Dec., ¶ 14. For both the Hogansburg Triangle and the Fort Covington Claims Area, there are many census blocks that are wholly within the area of interest, but there are also some census blocks that are partly within the area and partly outside of the claim area. Mann Dec., Attachments A - H. Therefore, Dr. Mann's methodology arrives at two estimates for population — one for the census blocks that are wholly within the area, and one that includes both the blocks wholly within the area and those partly within it. For example, with regard to the 2000 Census, there are 20 census blocks that are wholly within the Hogansburg Triangle, and another 2 that are partly within the Triangle, but that extend far into the Town of Bombay. Id., Attachments G & D. According to Census data, the Indian population of the 20 census blocks wholly within the Triangle was 75.7%, while the Indian population of the 22 census blocks wholly or partly within the Triangle (and partly within Bombay, outside of the Triangle) was 58.8%. Id., ¶ 8. Similar analysis for 1990 yields an Indian percentage population of 72.1% for the blocks wholly within the Triangle, and 54.6% for blocks partly or wholly within the Triangle. Id. (In the 1990 census, as in 2000, there were also two blocks that were partly within the


35

population in the area has been increasing for decades, while the non-Indian population has

been shrinking. Mann Dec., ¶ 19. Whiteley Dec. ¶ 37.

While it is not possible to determine historic figures for population in this specific

area,20 according to the Franklin County court, there were Mohawks living in the area at the

time of that suit. United States v. Franklin County, 50 F.Supp. 152, 154 (N.D.N.Y 1943).21

In fact, Mohawks have had a strong land ownership presence in the Triangle for

generations and as of today hold a large majority of the land. Land ownership data obtained

Triangle, but that extended far into the Town of Bombay. Id., Attachments H & B.) The higher numbers more closely reflect the true Mohawk population of this area because the partial census blocks include large portions of the Town of Bombay, which the census lists as majority non-Indian. See Mann Dec., ¶ 21, Attachment D; see also Muni. Defs. Memo. at 16. Even using the lower numbers that include portions of Bombay outside of the Triangle, however, the Indian population is still in the majority and growing. 20 The census block data method Dr. Mann used to determine population of the Hogansburg Triangle and Fort Covington for 1990 and 2000 could not be performed for earlier censuses because GIS (Geographic Information Systems) definitions of the Census Blocks for the 1980 Decennial Census and earlier do not exist. Mann Dec., ¶ 14. 21 The Municipal Defendants argue that the entire Hogansburg Triangle area at issue in this suit may not be taken into account by the court on the ground that the lands are no longer part of the claim area. Muni. Def. Memo. at 15. This is incorrect. The entire Hogansburg Triangle claim area is made up of approximately 2000 acres. There are three illegal purchases applicable to the area—those of June 12, 1824, December 14, 1824 and Sept. 23, 1825. See Whiteley Dec., ¶ 27. This court has ruled that, based on the previous Franklin County case, res judicata bars the U.S. and the SRMT from making a claim for the 144 acre area in the "1824 treaty." See Canadian St. Regis Band of Mohawk Indians v. State, 146 F.Supp.2d 170, 192 (N.D.N.Y. 2001). The only purchase at issue in the Franklin County case was the purported treaty of December 14, 1824. See 50 F.Supp. at 154. This agreement purported to transfer 144 acres of land based on two leases held by Michael Hogan. The June 1824 purchase purported to transfer 1000 acres of land in Hogansburg and the 1825 purchase another 840 acres. Whiteley Dec., ¶ 27. Thus only a small 144-acre portion of the 2000-acre Triangle is subject to this Court's res judicata ruling. Further, that ruling is not dispositive of even the claim for 144 acres since this Court expressly reserved judgment on whether res judicata barred MCA or MNCC from making a claim to the 144 acres. See Canadian St. Regis Band of Mohawk Indians, 146 F.Supp.2d at 192 (leaving issue of privity to another time).


36

from Franklin County and the map prepared from that data show that in the Hogansburg

Triangle, 72% of the land is either Indian-owned or Indian-occupied.22 Fisher Dec., ¶ 6,

Attachment C. See also Thomas Dec., ¶¶ 3-5, (regarding identification of land owned by

Mohawks). In contrast, only 28% of the land is non-Native owned and, of that, 88% is listed

as vacant on County records. Fisher Dec., ¶ 6, Attachment E. This means that only 3.4% of

the land in this area is non-Native-owned and –occupied.

The Mohawk occupation of this area is longstanding. The Franklin County case

illustrates the historical ownership patterns in the area. In that case, the ten parcels of land at

issue were owned and occupied by Mohawks and their families. 50 F.Supp. at 153. While

the full title histories of each individual parcel of land within the Triangle are beyond the

scope of these motions, we have looked at those parcels at issue in the Franklin County case

and others and have determined that Mohawks have owned at least several parcels in the

Hogansburg Triangle for generations, in some cases going back to the 1800s. Thomas Dec.,

22 The County has foreclosed on about 26% of the Indian-owned property in the Triangle due to non-payment of taxes. Fisher Dec., Attachment C. There is an agreement between the Tribe and the County that prevents the County from selling this land to third parties. The Agreement has been enforced by the District Court with the expectation that the issue of whether taxes should have been paid and the validity of the title and foreclosure actions will be resolved in the context of this land claim action. See Docket Entry 347, Report and Recommended Order Denying Tribe's Request for Injunction Against Foreclosures, which essentially confirmed the existing agreement as maintaining the status quo pending resolution of the land claim, and Docket Entry 359, adopting that Report. While the County may argue that the land cannot be included as an Indian-owned area, that argument is based on a presumption that the County is permitted to tax the land and therefore foreclose upon it and take title. But this lawsuit will ultimately determine whether the County has taken valid title through foreclosure. Therefore, since the question is the Indian character or presence on the land and the land is in fact occupied by Mohawks, we believe that it is proper to count the land as Indian. We have indicated on the map if the land has been foreclosed upon and we are referring to those lands as "Native occupied foreclosures." See Declaration of Ron LaFrance, SRMT/MNCC Exh. 2 (explaining identification of owners of foreclosed lands).


37

¶¶ 8-9 (noting properties purchased in 1837, 1875, and 1887 by Mohawks). Title abstracts

obtained by the Tribe establish that several properties in the Triangle have been continuously

or almost continuously Mohawk owned since they were first purchased by a Mohawk. For

example, property TM#18.1-2-6 (Hogansburg Lot 19) has been owned by Mohawks

continuously since 1918. See Thomas Dec., Attachment B. Another property, TM#18.2-5-2

(Hogansburg Lot 48), has been owned continuously by Mohawks since at least 1924. See id.,

Attachment H.23 One property, TM#18.1-1-11, had Mohawk ownership from 1936 until it

was lost at a tax sale in 1994. See id., Attachment G. Other properties have generally been

in Mohawk ownership since first purchased by a Mohawk, with some periods of non-

Mohawk ownership, including TM#18.1-1-13 (Lot 34), which has been owned by Mohawks

almost continuously since 1943, and has been owned by the Tribe since 1974. See id.,

Attachment F.

The demographics of the local school district are also indicative of the strong Indian

presence in the Hogansburg Triangle. The Salmon River School District is the New York

State public school district that serves parts of Franklin and St. Lawrence Counties, including

the towns of Fort Covington, Bombay, Brasher, Bangor and Westville, as well as the St.

Regis Mohawk Reservation. The district includes three schools: the Salmon River

Elementary School (located at 637 County Rt. 1, Ft. Covington), the St. Regis Mohawk

School (located in the Hogansburg Triangle), and the Salmon River Secondary School

(located at 637 County Rt. 1, Ft. Covington). The majority of School Board members are

Native, including SRMT Chief James Ransom. Declaration of James Ransom, ¶ 2f,

23 The abstract shows a tax sale deed in 1938 for taxes owed by the Mohawk owner, Mose Herne, but the abstracter could find no deed out of Franklin County for the property, and the property remained in the Herne family. See Thomas Dec., Attachment H, at 10-13.


38

SRMT/MNCC Exh. 4 (hereinafter "Ransom Dec."). The School district student population is

also majority Native.

According to a recent count taken by the Tribe, the overall Native population is 64%.

The student population of the St. Regis Mohawk School located off-reservation in the

Triangle is 99% Mohawk. The high school is 52% Mohawk. These statistics are based on a

count performed by the District for Title VII purposes and includes those Mohawk students

whose families live on- and off-reservation.24 Ransom Dec., ¶ 2f. Because of the majority

Native population in the Salmon River district, there have been enhancements to the Native

American studies curriculum and to the schools’ overall curricula to make them more

culturally diverse, including the hiring of a Mohawk language teacher using district funds

and the hiring of a Mohawk Ombudsman. Id. Last year, the school board endorsed the

wearing of traditional clothing by Mohawks at graduation, becoming the first public school

district in the state to do so. The year before this, the school district allowed for the flying of

the Haudenosaunee flag at the campus school, alongside the American and Canadian flags.

Id.25

24 These statistics more accurately capture the total number of Mohawk students than do the official School Board statistics, which list the Native student population at 50%. This is because the School District conducts its count for impact aid purposes and therefore counts only those students whose families live on-reservation and therefore do not contribute to the tax base supporting the district. Ransom Dec., ¶ 2f. 25 The presence of Indians in the off-reservation school district is not solely a recent phenomenon. In the Franklin County case, the district court describes an off-reservation Indian public school located in the Village of Hogansburg circa 1940. 50 F.Supp. at 154.


39

3. History of Tribal Governmental Authority in the Triangle.

The Tribe currently exercises tribal authority in the Triangle by offering several

municipal services not offered by the local towns or the County. These are outlined in the

declaration provided by Tribal Chief James Ransom.

Since 2001, the Tribe has operated a water treatment plant on its reservation that

provides water to the reservation and to most residents within the Hogansburg Triangle,

Indian and non-Indian, free of charge. The Tribe also operates a sewage treatment plant on-

reservation that serves the reservation and the Hogansburg Triangle land claim area. The

Tribe offers trash collection services to the Triangle as well. The Town of Bombay landfill

was closed by the State in the 1980s and in response, the Tribe opened its own facility,

located in the Fort Covington land claim area, to take care of recycling and trash from the

reservation and the Triangle. Ransom Dec., ¶ 2a.

The Tribe provides these services within the Hogansburg Triangle because a large

number of its members live in the area and operate businesses there. Neither the Town of

Bombay nor the Town of Fort Covington has ever offered water and sewage services in the

Hogansburg Triangle because those towns do not have treatment facilities. The Tribe

stepped in to fill the gap, constructing the facilities with federal and tribal funds, so that those

living in the Hogansburg Triangle or on the reservation would not have to rely on wells and

septic systems. In so doing, the Tribe has also benefited the non-Indians in the area who also

have access to the free services. The Town of Bombay had verbally opposed some of the

efforts of the Tribe to extend its waterline into the Hogansburg Triangle. As a result, there

are a couple of streets in which the homes are not hooked up to the Tribe's waterline. The


40

federal government, the State and the County have not otherwise questioned the Tribe's

authority to provide this municipal service in the Hogansburg Triangle. Id.

The Tribe also provides free water and sewer services to the St. Regis Mohawk

School, an elementary school that is located in the Hogansburg Triangle and is part of the

Salmon River School District. The School District has accepted these services from the

Tribe without question. Id.

The Tribe operates a Planning and Infrastructure Department that is responsible for

maintaining reservation roads. In 2006, the Tribe was working on the reconstruction of Cook

Road, a half-mile of which is located off-reservation in the Hogansburg Triangle. The State

declined to fund the reconstruction of the part of the road in the land claim area, so the Tribe

completed the construction with federal and tribal funds with no objection from the State or

County. Indian and non-Indian residents alike use this road. Id., ¶ 2b.

The Tribe operates and funds the Hogansburg Volunteer Fire Department, which is

formed as a separate non-profit group, currently at the rate of about $100,000 annually. The

Department headquarters are located in the Triangle and were constructed in 2003 with tribal

funds and under tribal environmental law using a tribal environmental assessment. Since

1956, the Fire Department has provided fire and rescue services to both the reservation and

the Hogansburg Triangle. Under an ongoing service agreement, the Town of Bombay pays

the Department for those services. The Tribe's Fire Department is also part of the Mutual

Assistance network and responds to 911 calls both on- and off- reservation. Id., ¶ 2c.

Since June 1992, the Tribe has operated a police force under tribal law. The force

currently has 13 officers. In 1999, the Tribe entered into a Special Deputization Agreement

with Franklin County to deputize tribal police as necessary to operate not only on the


41

reservation but also in "portions of the Town of Bombay." This part of the agreement

referred to the Hogansburg Triangle and tribal police regularly patrolled this area. The

agreement also provided that the Tribe's police could have been called upon to operate

anywhere within Franklin County in the case of an emergency. The agreement was

terminated by Franklin County on March 2, 2000 because of an internal tribal government

dispute and related police operations against some Mohawks in the area. In the meantime,

the tribal police have generally been patrolling the area and as necessary have been holding

non-Natives until local police can arrive. Id., ¶ 2d.

In addition, in 2004, the State enacted a law that permits the Tribe to operate a police

force whose members may be certified as state police. N.Y. Indian Law, §114. Under this

State law, the tribal police officers are empowered to act as state police officers on-

reservation and may pursue off-reservation, not only in the Triangle but throughout Franklin

County if necessary. The Tribe's police force has the distinction of being the only tribal force

authorized to be certified as state police and to operate off-reservation in New York. The

final certification was issued on May 30, 2007. Ransom Dec., ¶ 2d.

For the past decade the Tribe has applied its tribal environmental laws both on-

reservation and in the Triangle. The Tribe has also adopted a building code that mirrors the

New York State model code and applies it in the Triangle. The Tribe inspects gas stations

and issues building permits in the Triangle under these laws. It was not until September

2004 that the Town of Bombay adopted a local law for the enforcement of the same state

uniform building code in the Triangle. The Town made some attempt to enforce its code in

the Triangle with mixed success. Id., ¶ 2e.


42

4. History of Previous Claims to the Area.

Unlike some other tribes in New York, including the Cayugas and Oneidas, the

Mohawks never removed. Whiteley Dec., ¶¶ 29, 30. When the State attempted to negotiate

mandatory removal of the Mohawks through the 1838 Treaty of Buffalo Creek, the Mohawks

refused and instead insisted upon a treaty provision that stipulated that they would only

remove voluntarily, if at all. Whiteley Dec. ¶ 28. They never did. Id. Having stayed, their

numbers grew and they became part of the economy of Northern New York, their culture

thriving on and off the reservation. Id., ¶¶ 29, 31, 36. As the Treaty of 1796 and the Treaty

of Buffalo Creek show, the United States has long recognized the reservation and Mohawk

presence in the area. The Mohawks are discussed in the annual BIA surveys of New York

and in 1890, the federal government conducted a survey of the reservation and its population.

Whiteley Dec., ¶ 35, p. 57.

The Mohawks have never acquiesced in the validity of the purported state purchases

of their land and have refused to concede the land was lost. Initially, the Mohawks did not

understand that the leases to non-Indians had been converted by the State into fee title.

Whiteley Dec., ¶ 32. In a series of lawsuits filed in state and federal court, the Mohawks and

their trustee, the U.S., sought not just compensation but rather the right to possession and

sovereignty on the ground that the transactions violated the Nonintercourse Act and were

therefore void. These met with little success since there were serious legal bars to

proceeding. Declaration of Lindsay Robertson, SRMT/MNCC Exh. 5 (hereinafter

"Robertson Dec."), passim.

For example, in Deere v. New York, 22 F.2d 851 (N.D.N.Y 1927), aff'd, Deere v. St.

Lawrence River Power Co., 32 F.2d 550 (2d Cir. 1929), a member of the St. Regis Mohawk


43

Tribe brought an ejectment action against New York and the St. Lawrence River Power

Company for lands transferred in violation of the Nonintercourse Act. Deere alleged among

other things that the land remained within the Tribe's reservation and that the lands continued

to be occupied by the "St. Regis Tribe of Indians in their tribal capacity." 22 F.2d at 851.

The lawsuit was dismissed for failure to state a federal question.

In 1938, the United States filed suit to challenge the right of Franklin County to

impose taxes on the specific tracts of land held by tribal members in an area illegally

purchased by the State, an area that is part of the Hogansburg Triangle. United States v.

Franklin County, 50 F.Supp. 152 (N.D.N.Y. 1943). The U.S. claimed that the County had no

jurisdiction over the lands since the lands remained within the 1796 reservation. The U.S.

asserted that certain land in the Hogansburg Triangle had been illegally purchased by the

State, in violation of the Nonintercourse Act. Thus, the United States sought to establish the

tribe's title and sovereign control by arguing the lands at issue remained within the

reservation and outside of state and local jurisdiction. But this challenge was also dismissed

on the ground that a claim under the Nonintercourse Act would not lie.26

The Mohawks have also pursued alternative relief for the illegal taking of their lands.

See discussion below at pp. 63-65.

26 The Municipal Defendants claim that the Franklin County case did not seek title. Muni. Defs. Memo. at 12-13. As the Defendants well know, a Nonintercourse Act claim is a claim that the State has improperly taken title. The U.S. did not seek monetary recompense for the land taken but rather an injunction and a declaration that the land still belonged to the Tribe as part of its reservation. 50 F.Supp. at 153. This was also the relief sought in Deere. 22 F.2d at 854.


44

B. ARGUMENT

1. The Hogansburg Triangle Claim Area Is Distinguishable From the Lands at Issue in Sherrill and Cayuga Since It Is Largely Indian-owned and -Occupied.

Of utmost importance in Sherrill, Cayuga, and Oneida was the extent to which Indian

land ownership or title and the potential change in governance would cause a disturbance to

non-Indian owners and government in the claim area. See Sherrill, 544 U.S. at 202, 217-221,

1492-94; Cayuga, 413 F.3d at 277; Oneida, 2007 WL 1500489, at *4-*5. The demographics

of the Hogansburg Triangle stand in stark contrast to those of the land claim areas in Sherrill,

Cayuga and Oneida and demonstrate that a claim to this area by the Mohawks would not

have disruptive impacts similar to those identified in those cases. The State points out that

the "possessory history of the subject lands" is relevant to the disruption inquiry. State Brief,

p. 16 n.10 (emphasis in original). We agree, and in the case of the Triangle, the facts sharply

distinguish these claims from those at issue in Sherrill, Cayuga, and Oneida. To understand

the legal import of these considerable factual differences, it is instructive to consider, as the

Court did in Sherrill, the Supreme Court’s Indian reservation diminishment case law.

2. The Diminishment Cases Show that an Award of Indian Title Is Not Necessarily Disruptive.

As noted above, the Supreme Court in Sherrill used factors articulated in Indian

reservation diminishment cases to determine whether or not the remedy at issue was unduly

disruptive.27 The diminishment cases make clear that when lands are of significant Indian

character-- meaning having majority Indian population and land ownership as well as being

subject to the exercise of tribal jurisdiction, whether longstanding or recent--there is little

27 We note that the diminishment cases require as a threshold an Act of Congress that purports to reduce the size of or to transfer land from the reservation. That threshold has not been met in this case.


45

disruption to non-Indians and the lands may be found to be part of the reservation despite the

presence of non-Indian settlements there. Under the standards applied in the diminishment

cases and adopted by the Sherrill court, the Hogansburg Triangle is Indian in character and,

by analogy, still part of the reservation. As such, this Court should find that a claim to this

area is not sufficiently disruptive to warrant application of the laches defense pursuant to

Sherrill and Cayuga.

In Solem v. Barlett, 465 U.S. 463, 480 (1984), the court found that where the

"population of the area is now evenly divided between Indians and non-Indian residents,"

there could be no legitimate expectation that the land would always remain free of Indian

jurisdiction. 465 U.S. at 480. The Court also noted the "strong tribal presence" citing to

several significant facts: the Tribal authorities policed and supplied services to the area, two

thirds of the Tribe's members lived in the area, and the seat of Tribal government was located

in the disputed area. 465 U.S. at 480. The Court noted on the other hand that "[w]hen an

area is predominantly populated by non-Indians with only a few surviving pockets of Indian

allotments, finding that the land remains Indian country seriously burdens the administration

of state and local governments." Id. at 471 n.12. The Court cited to non-Indians flooding

into lands as evidence that diminishment may have occurred. Id.

In contrast, in Hagen v. Utah, 510 U.S. 399 (1995), the Court found an area to be

diminished where the Indian population totaled only 15% and the State had historically

exercised jurisdiction in the area unchallenged by the federal government. In South Dakota

v. Yankton Sioux Tribe, 522 U.S. 329, 356-358 (1998), the Court found diminishment where

only 10% of the lands in the opened area were in Indian hands and non-Indians constituted

over two thirds of the population. In addition, the Court found it significant that the Tribe


46

had presented no evidence of attempts to exercise jurisdiction, even recently. Id. at 357. The

Court in both Hagen and Yankton limited those holdings to those lands that had been opened

and "severed" from the reservation and did not extend the rulings to find disestablishment in

areas where the demographics were significantly different. Id. at 358 (citing Hagen v. Utah,

510 U.S. 399 (1995)); see also City of New Town v. United States, 454 F.2d 121 (8th Cir.

1972) (where the court distinguished between reservation areas based on their facts and

history in order to determine diminishment).

3. The Hogansburg Triangle Demographics Show an Overwhelming Indian Presence and Therefore Minimal Disruption of Non-Indian Interests.

The operative statistics presented in the Cayuga and Oneida cases establish several

Courts' views on what constitutes an area of non-Indian character subject to disruption. The

Oneidas' reservation is only 32 acres. The tribally owned parcels that had been recently

purchased by the Oneidas were scattered throughout Oneida and Madison Counties, rather

than being located adjacent to the reservation, and were located in an area with a population

99% non-Indian. In the Oneidas' land claim, the court noted that the Oneidas conceded they

had been subject to removal and that the land had been open to white settlers. The Oneidas

further "admit[ted] that the population of the claim area has been predominately non-Indian

since the mid-nineteenth century." Oneida, 2007 WL 1500489, at *6. Citing to census data

as indicative of the character of the area, the Oneida court found that 0.2% of the population

in Oneida County and 0.6% in Madison County was American Indian or Alaska Native. Id.

These statistics, among others, proved the non-Indian character of the land. Id. The Court

also cited to non-Indian occupation of the land as a controlling factor. Id. at *7. Similar

statistics were cited in Sherrill. 544 U.S. at 211.


47

In the Cayuga land claim, the tribe had no existing reservation, its population of 464

members was insignificant as part of the population in its claim area, and the Cayuga land

ownership in the claim area was minimal. See generally, Cayuga X, supra.28

These facts contrast dramatically with those in the Hogansburg Triangle. The Indian

character of the Mohawk reservation permeates the Triangle. As shown above, the Mohawks

never removed from their reservation, which surrounds the Triangle on two of its three sides.

Based on statistics gathered from public sources by the Mohawks' experts, the Hogansburg

Triangle has a majority Mohawk population, land ownership and occupation.29 The School

District serving the Triangle has a Native majority of both the School Board and the students.

Unlike Sherrill, where the Court emphasized that the Tribe had only recently acquired

the land, the land in the Hogansburg Triangle has in many cases been in Indian ownership for

generations.30 When the State illegally purchased the Hogansburg Triangle, non-Indians did

not flood into the area so as to change its entire character. Cf. Oneida, 2007 WL 1500489 at

28 It is significant that the Sherrill and Cayuga Courts considered the current population and land ownership statistics, not historic population figures, to determine disruption. But even if the question were of historic population and land ownership, the Mohawks meet that test as well. As we have shown above, at pp. 36-37, there is evidence that the Mohawks have historically lived and owned land in the area. 29 The Municipal Defendants present census statistics in arguing the demographics of the land claim area. Muni. Defs. Memo. at 16, and Muni. Defs. Exhs. 8, 9 and 10. Those census statistics are not limited to the claim areas, however, but encompass much larger areas, such as entire counties. Since the Mohawk claim areas do not encompass that entire area, nor are they scattered throughout the counties, the County-wide statistics are not relevant to the question of the degree of disruption caused by claims to the particular land at issue here. See Mann Dec. ¶¶ 21-22. 30 While the Court in Sherrill focused on the "recent" purchases of the Oneida, the import of that fact went to whether the local non-Indian populations had settled and justifiable expectations that the Tribe had no presence in the area. While some land in Hogansburg has been recently purchased, it does not change the overall assessment of the Indian character of the area, which we have established is longstanding.


48

*6 (where the historical record showed evidence of "an explosion of the white settler

population" in the claim area following the contested purchases). Rather, the fact that the

area was carved out of the original reservation has meant that Mohawks have moved in and

out of the area regularly as if it is still part of their reservation and have been doing so for

some time. Mohawks continue to use lands outside of the reservation, not only for

residential and commercial purposes but also for traditional cultural purposes such as fishing,

hunting, and the gathering of medicines. Whiteley, ¶ 31.

Another factor cited in Sherrill, Cayuga, and Oneida was the "dramatic changes in

the character of the property." 544 U.S. at 216-217; 413 F.3d at 274; 2007 WL 1500489 at

*6 (noting also that an earlier district court decision in that case had found that non-Indian

"development of every type imaginable" had occurred throughout the claim area). In the

Oneidas' and Cayugas' land claims, the Tribes were claiming title to land in highly populated

non-Indian urban areas. In the Cayuga land claim, the Cayugas were claiming some 64,015

acres in Seneca and Cayuga Counties, with population densities (according to the Census

Bureau's 2000 Census) of 102.6 and 118.2 persons per square mile, respectively.31 Sherrill

involved land in the City of Sherrill, with a population density of 1,554.6, per square mile

according to the 2000 Census.32

In contrast, for the Mohawks, Population densities for the land claim areas, excepting

the Village of Massena, are very low -- fewer than 45 persons per square mile.

31 Source: U.S. Census Bureau 2000 Decennial Census. The data cited in the above table can be found by using the links for New York county and other areas on the following page of the Census Bureau's website: http://www.census.gov/census2000/states/ny.html (viewed May 16, 2007). 32 Id.


49

In fact, an expert retained by the Mohawks has determined, using 2000 Census data, that

the total population that would be affected by the return of the Hogansburg Triangle and the

Town of Fort Covington (excluding the Village or Hamlet of Fort Covington) would be no

more than 750 people. Mann Dec., ¶ 18.33 And many of these people are Mohawk. Id.34

These areas are not home to tens of thousands of people and represent a small fraction of the

"large swaths" of land at issue in the Cayugas' and Oneidas' land claims. See Cayuga, 413 F. 3d

at 275; Oneida, 2007 WL 1500489, at *4. The population densities are dramatically lower than

the densities of the areas at issue in the principal cases relied upon by the defendants, and the

numbers of persons affected by the Mohawks' claims are dramatically lower as well.

As a part of their continuing presence there, the Mohawks have contributed to the

development of the area. The Defendants would have this Court believe that there is a

33 The actual number affected would no doubt be somewhat lower than this. As explained below at note 6, the Mohawks' expert, Dr. Mann arrived at two counts for the claims areas -- one for the census blocks wholly within the areas, and another for the blocks wholly or partially within the areas. The 2000 Census total population of the Hogansburg Triangle and the Town of Ft. Covington was 308 (115 + 193) for the blocks wholly within the areas, and 750 (221 + 529) for the blocks wholly or partially within. Declaration of Dr. Charles Mann, SRMT/MNCC Exh. 3, ¶ 18. 34 Population figures for all of the land claim areas would be higher than the figures cited above for the Hogansburg Triangle and part of the Town of Fort Covington since they would include the Village of Massena mile square and the Fort Covington Village mile square, more populous areas. According to the 2000 census, the listed population of all of the Village of Massena is 11,209, that of the Town of Fort Covington is 1645, and that of the Town of Bombay is 1192. See p.16 of the Municipal Defendants Memorandum. The entire population of these three towns is 14,046. As we have explained, note 6 below, in order to know the exact population for the land claim areas only, such as the mile squares, we would have to look at the census data on the block level. We have not presented that data to the Court. But even at the broader level of data utilized by the Municipal Defendants, which encompasses far more area than the identified land claim areas, the entire population of these three towns does not constitute "tens of thousands" of people. Given that this census data includes lands not within a claim area, it is clear that the claim of disruption to a vast number of non-Indians is an overstatement.


50

barrier that runs along the reservation boundary and that the Mohawks simply have nothing

to do with the history or economy of the land outside that barrier. To the contrary, as

discussed above, there is no tangible boundary between the Reservation and the Triangle.

Mohawks have lived in and run businesses in the Hogansburg Triangle for many years, as

they have on the Reservation.35 They also have a long history of leasing those lands, which

is a commercial use. Whitely Dec., ¶ 22.36 It is simply not true that only non-Indians were

responsible for the use and development of these land claim areas. To the extent that

development has occurred in the Triangle, Mohawks have been active in that development.

The Sherrill Court also identified as a relevant factual consideration its perception

that the Oneidas had never made any efforts to assert jurisdiction until they acquired land in

the 1990's, thereby allowing non-Indian governments to develop settled expectations of

unchallenged jurisdiction. See, e.g., Sherrill, 544 U.S. at 199.

By contrast, the Mohawks have never allowed such settled expectations to develop.

As noted above, see discussion at pp. 42-43, the Mohawks asserted their sovereignty and

authority in several early twentieth century lawsuits. And, as it had not for the Oneidas or

Cayuga, the United States acted on behalf of the Tribe in the Franklin County case to directly

challenge the County's taxing jurisdiction. 50 F. Supp at 153. That is, the Tribe and the

United States did seek to establish "sovereign control," Sherrill, 544 U.S at 216, but the

35 In addition, more recently, the Tribe has established a thriving on-reservation casino that has generated some development on adjacent lands located in the land claim area. The Mohawks have thus contributed both directly and indirectly to the development that has occurred in the claim area. 36 Indeed, non-Indian land speculators in this area made fortunes in the same way--leasing and selling land.


51

challenge was dismissed on the ground that a claim under the Nonintercourse Act would not

lie.

In conjunction with its presence in the Triangle, the Tribe exercises its governmental

authority, and has done so for some years, even to the benefit of non-Indians, providing

municipal services. See discussion above at pp. 38-41.37

In sum, the Hogansburg Triangle is fundamentally factually distinct from the

demographic and jurisdictional situations presented in Sherrill, Cayuga, and Oneida, and the

distinctions go to the heart of whether the Mohawk land claim has a disruptive impact

sufficient to warrant the application of laches. The Hogansburg Triangle's majority Indian

population, low population density, strong Indian character, and tribal authority argue

strongly against application of laches here.

4. The Town of Fort Covington Claim Area is Distinguishable As to The Indian -owned and -occupied Lands.

The Fort Covington Claim Area, see note 17 above, has a unique set of facts, which

also distinguish the area from those presented in Sherrill, Cayuga, and Oneida. Like the

Hogansburg Triangle, Ft. Covington is adjacent to the reservation and is made up largely of

rural farm lands, some of which have been vacated by non-Indians or acquired by the Tribe

and its members. There has been very little commercial development. Like the Hogansburg

Triangle, this contrasts sharply with the developed and urban lands at issue in the Sherrill,

Cayuga, and Oneida cases.

37 That the Tribe's actions are of relatively recent vintage does not detract from their importance to this analysis. In Yankton Sioux, for example, when testing the Indian character of the area, the Supreme Court considered recent attempts to exercise jurisdiction as significant. 522 U.S. at 356.


52

The Ft. Covington area is divided by Pike Creek. To the west of the creek and

immediately adjacent to the reservation there is a concentration of Mohawk ownership, and a

sizable percentage of the non-Indian owned land is vacant farm land. Fisher Dec.,

Attachment Map D, SRMT/MNCC Exh. 1. Disruptive impacts from the Mohawk land claim

are thus hard to imagine here. To the east of the creek, the Tribe owns a 32-acre parcel upon

which is has constructed a transfer station for recycling materials. Ransom Dec., ¶ 2. This

site was constructed with the approval of and funded by the federal government. Id.

While Mohawks are not the majority in the Ft. Covington claim area, they are a

significant percentage and growing. The Indian population (as a percentage of total

population) grew dramatically between 1990 and 2000, increasing approximately 21.4% (for

census blocks wholly within the area). Mann Dec., ¶ 19.38 Further, the overall population is

quite sparse.

In whole or in part, the Ft. Covington claim area thus also lies outside of the

parameters for "disruptive" claims established by Sherrill and Cayuga and should therefore

not be deemed to be subject to laches pursuant to those rulings.

Part IV - The Rights-of-Way Claim

The land claim also includes the acquisitions of rights-of-way by specific defendants

both on the current reservation and off the reservation in the land claim areas. These rights-

of-way were established in violation of the federal law controlling the granting of rights-of-

way on Indian lands and are therefore invalid under the Nonintercourse Act, 25 U.S.C. § 177.

38 The Indian population (as a percentage of total population) for the census block area that is wholly or partially within Fort Covington grew by 40.9% in the same period. Mann Dec., ¶ 19.


53

A. Statement of Facts - History of Rights-of-Way Taken by Niagara Mohawk Power Company.

In 1949, the Central New York Power Corp., a predecessor in interest to Niagara

Mohawk Power Co. ("Niagara Mohawk"), entered into a franchise agreement with the

Mohawks for the right to construct, operate and maintain electric facilities on the highways,

streets, and roads of the reservation. For the price of one dollar, the Mohawks deeded to the

company a 99-year, 30-foot right-of-way running through the reservation, for the purpose of

constructing electric lines upon and through tribal lands to distribute electricity to the

reservation and beyond. SRMT/MNCC Exh. 8. The Mohawks further agreed to be subject

to the rates, rules, and regulations for the service as permitted by the PSC. This agreement

served as both a right-of-way and a franchise agreement, which purported to grant an

occupancy right and easement within the public thoroughfare. There is no evidence that the

Secretary of the Interior approved these agreements as is required under 25 U.S.C. § 323-328

and according to the regulations set forth in 25 C.F.R. Part 169.

Niagara Mohawk is named as a defendant in the 1989 Mohawk complaint. Paragraph

four of the complaint defines "subject lands" of the claim as those listed in paragraph 21,

which sets forth the various state treaty transactions. But in a separate Count, paragraph 29

expressly refers to "other lands" that have been encroached upon or that are in possession of

the defendants within the "original reservation." The original reservation is defined in

paragraph 17 as all land set aside in the 1796 treaty, which includes the current reservation.

Paragraph 29 of the Complaint provides:

"The Defendants and members of the defendant class have encroached upon and are now in possession of other lands, including but not limited to the surface and right-of-way of N.Y.S. Route 37, and certain portions of the Town of Bombay, which were part of the original reservation, but which were not included in any of the purported transactions enumerated in paragraph 21 above."


54

This broad statement was intended to include all other transactions occurring within

the original boundaries of the reservation that violated the Nonintercourse Act, and under the

liberal notice pleading rules would include rights-of-way granted by the 1949 franchise

agreement as well as the road rights-of-way granted to the State that Niagara Mohawk uses

as part of its operation. Under the Nonintercourse Act, 25 U.S.C. § 177, Congressional

approval is required for Indian land transfers. In the federal Indian right-of-way statute, 25

U.S.C. §§ 323 et seq., Congress delegated to the Secretary of the Interior the authority to

approve the use of tribal lands in a way that results in compliance with § 177. The Secretary

of the Interior did not approve these agreements as is required under 25 U.S.C. § 323-328

and according to the regulations set forth in 25 C.F.R. Part 169. If the right-of-way is taken

in violation of the rights-of-way statutes, then §177 is also violated. See, e.g., United States

v. Southern Pacific Transp. Co., 543 F.2d 676 (9th Cir. 1976). Thus, the Mohawks have a

claim pending against Niagara Mohawk for these illegal agreements.39

B. Argument - The Rights-of-Way Claim Does Not Meet the Disruption Test Since Federal Law Permits Rights-of-Way Across Indian Lands.

This claim is not directly affected by the Second Circuit's ruling in Cayuga. First, the

transaction at issue occurred relatively recently, in 1949. Second, the claim is for trespass on

tribal land, based on the use and occupancy of the right-of-way. In granting a right-of-way,

the Mohawks did not purport to transfer title but only the right to occupy. Niagara Mohawk

could not have had any expectations of underlying ownership, even if the rights-of-way at

issue were valid. As such, Niagara Mohawk could have and did in fact only develop the land

39 The Mohawks also have a pending claim for road rights-of-way that were taken by the State to construct various roads on-reservation and in the land claim area. These rights-of-way are also covered by federal law and would be controlled by the same disruption analysis. The Mohawks have been unable to obtain from the State, in the normal course of business, any information on the rights-of-way taken by the State.


55

interest according to what it would have been permitted to do had the right-of-way been

valid.

Federal approval of rights-of-way on Indian lands is required by 25 U.S.C §§ 323-

328. Federal regulations, title 25 C.F.R. 169.27 specifically applies to power projects and the

right-of-way for "electrical poles and lines for the transmission and distribution of electrical

power." For any type of power lines, the regulations require that the electric company file an

application for a right-of-way. In that application, the company must agree, among other

things, to pay damages related to the maintenance of the right-of-way. 25 C.F.R. § 169.6 (b)

and (c). The applicant must also agree to pay consideration for the right-of-way at "not less

than but not limited to the fair market value of the rights granted, plus severance damages, if

any, to the remaining estate." 25 C.F.R. §169.12. The Secretary is required to make an

appraisal of the right-of-way. Id. Rights-of-way may not exceed 50 years in duration. 25

C.F.R. § 169.18.

The 1949 agreement provided for no compensation, contrary to federal law. While

the Cayuga court rejected the remedy of money damages, it did so because those damages

depended on the possessory interest alleged by the Cayuga, that is, the right to eject those in

possession. 413 F.3d at 278-279. The Court reasoned that damages would not be available

since they rested on a claim for possession that was barred by laches. Id. In this case, the

Mohawks have never lost title to lands on the reservation and would not lose title with a

grant of a right-of-way, nor would Niagara Mohawk gain title with a right-of-way. The

Mohawks do not seek ejectment in any event. This claim is simply for failure to pay for the

right-of-way taken in the past and that will be used in the future. The analysis is analogous

to that applicable to the Islands Claim: Congress has set up a remedial scheme to


56

compensate Indian tribes and nations – but not to provide for ejectment -- when their lands

are reasonably used by non-Indians.

Part V - Laches Does Not Bar the Mohawks' Claims

Given the significant factual and legal differences between the Mohawk claims and

those at issue in Sherrill and Cayuga, the Mohawk claims are not sufficiently disruptive to

warrant the application of laches. If this Court nonetheless decides to apply laches to these

claims, it must, as discussed below, do so based on the particular facts at issue here. Under

these facts, laches does not justify dismissal of the Mohawk claims.

A. Cayuga Does Not Require Dismissal of the Mohawks' Claim As a Matter of Law.

The Defendants argue that Cayuga requires that the Mohawks' claims be dismissed as

barred by laches without a hearing or further evidentiary review. But the Defendants confuse

the result in Cayuga – that laches barred the claims in that case under those facts – with the

holding – that disruptive Indian land claims are subject to laches. "Subject to" in this context

means that the defense is available. Cayuga did not create an “automatic dismissal” rule

applicable to all possessory Indian land claims. If this Court finds that the Mohawks' claims

are disruptive within the meaning of Sherrill and Cayuga, and therefore "subject to" laches, it

must nonetheless determine whether the Defendants have met their burden of showing that

the required elements of laches have been proven with findings of fact adduced through

declarations or at an evidentiary hearing.40 The Court of Appeals' application of laches to bar

the claims in Cayuga was based on the discretionary "findings of the District Court" based on

40 The Defendants' erroneous conclusion results from a misreading of the statement in Cayuga that the Cayugas' claim was "subject to dismissal ab initio." 413 F.3d at 277-278. This phrase does not obviate the need for the trial court to undertake the factual determinations required by the traditional doctrine of laches. A claim may be "subject to" a defense, but the defense bars such claim only if all of the elements are proven.


57

a full factual record, and is not to the contrary. 413 F.3d at 268. Indeed, the court could not

have held that laches bars all old Indian land claims as a matter of law because it is well

settled that laches depends on "the circumstances peculiar to each case." Stone v. Williams,

873 F.2d 620, 623-624 (2d Cir.), cert denied, 493 U.S. 959 (1989); see also Paiute-Shoshone

Indians, 2007 WL 521403, at *11 (holding "the issue of laches raises significant questions of

fact that cannot be resolved on a motion to dismiss"). There is no one size fits all rule.

Judge Kahn's ruling in Oneida supports this interpretation of Cayuga. In that ruling,

the court first found that the Oneidas' possessory land claims were subject to the defense of

laches and then reviewed factual considerations drawn from Sherrill and Cayuga to

determine whether the defense barred the claims. 2007 WL 1500489 at *4-*7. Only after

examining the factual record developed by the parties in the District Court in the Oneidas

land claim and by the Supreme Court in the Sherrill case did Judge Kahn rule that undisputed

facts in the case justified dismissal pursuant to laches. Id. at *7 ("the undisputed facts as

developed by the parties and in Second Circuit and Supreme Court precedent require the

Court to grant the Defendants' Motion for summary judgment and dismiss the Plaintiffs'

possessory land claims"). There is no such record of undisputed facts in this case.

The Defendants admit that laches is a fact-dependant determination by relying on

facts outside the complaints to support their motions. In their Motions, the Defendants do

not ask this Court to dismiss the Mohawks' claims on pure legal questions as framed by the

allegations of the complaints. Rather, they rely on census data, alleged facts regarding

Mohawk history in the area, alleged jurisdictional facts and allegations about the purported

acquiescence of the Mohawks in the unlawful transactions. They thus agree that laches is not

so clear from the face of the complaint that "no set of facts can be proven" to avoid the laches


58

bar. Lennon v. Seaman, 63 F.Supp.2d 428, 439 (S.D.N.Y. 1999). Indeed, this has been their

position throughout this case. In a previous ruling, this Court noted that the Defendants

repeatedly argued that the laches defense cannot be stricken because there has been no

discovery. Canadian St. Regis Band of Mohawk Indians, 278 F.Supp.2d at 330.

The fundamental law of laches remains unaltered by Cayuga, even where the court

finds old Indian land claims are "subject to" the defense. Laches is an affirmative defense.

The Defendants therefore have the burden of demonstrating that the Mohawks unreasonably

and inexcusably delayed and that the Defendants have been materially prejudiced as a result

of the delay. Ivani Contracting Corp. v. City of New York, 103 F.3d 257, 259 (2d Cir. 1997).

These factual determinations are left to the discretion of the trial court. DeSilvio v.

Prudential Lines, Inc., 701 F.2d 13, 15 (2d Cir. 1983).

The Defendants have not met their burden to prove these elements of laches. Their

argument proceeds largely from three premises, two of which derive simply from the passage

of time: the land was obtained by the State many years ago and the Mohawks did not file

these suits until relatively recently.41 But the laches doctrine does not permit the imposition

of the bar from the passage of time alone. That would simply be a statute of limitations in a

different guise. Rather, laches is a flexible equitable doctrine that requires the trial court to

answer the question whether, in light of all of the circumstances, it is fair to permit the claim

to be enforced. The Key City, 81 U.S. (14 Wall.) 653, 660 (1871) (laches turns on the

"peculiar equitable circumstances" of each case); O'Brien v. United States, 148 Ct. Cl. 1

(1960) ("Each case must be considered in the light of its own facts" and "[i]t is only where

41 The third premise, that in the intervening years each portion of the subject land has been "developed" as part of a non-Indian economy, is unsupported by the facts, as demonstrated above.


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some great injustice would be done the defendant by so long a delay by the claimant that the

doctrine of laches should be set up to defeat consideration of the claim.").

B. The Defendants Have Not Met Their Burden To Show the Mohawks Unreasonably and Inexcusably Delayed in Filing These Suits

Arguing that the Mohawks did not seek equitable relief until these suits were filed,

the Defendants seek to discount in the laches calculus earlier Mohawk efforts to assert their

rights in court and elsewhere. The Defendants' argument is wrong as a matter of fact and

law. To the extent they were able, the Mohawks did challenge the Defendants’ rights to their

lands. And the Mohawks cannot be held responsible for failing to make the kinds of

challenges that were precluded by state and federal law. Galliher v. Cadwell, 145 U.S. 368

(1892).42 Although later proved wrong, early holdings of the state and federal courts denying

the Mohawks' legal capacity to assert tribal claims and casting doubt on the jurisdiction of

the courts to hear such claims must be taken into account in evaluating the "delay" of the

Mohawk plaintiffs here. See generally, Robertson Declaration. For example, from the

founding of the United States until well into the 20th century, federal and state courts

routinely held Indian nations lacked capacity to sue in the absence of special authorizing

legislation. See, e.g., Johnson v. Long Island R. Co., 56 N.E. 992 (N.Y. 1900); Seneca

Nation v. Christy, 162 U.S. 283 (1896).

42 Judge Kahn's decision in Oneida does not alter this longstanding Supreme Court rule. Although Judge Kahn opined that it was not necessary for him to determine whether the Oneidas had unreasonably delayed in filing their claims, Oneida, supra, at *7, he held the Court to be "bound by the Supreme Court's findings that, for purposes of applying laches to land claims, there was a significant lapse of time between the complained of land transactions and the Plaintiffs' efforts to regain possession of the claimed land." Id. at *5. The findings to which Judge Kahn referred are specific to the facts of the Oneida case and go to both the length and the reasonableness of the Oneidas' delay. As discussed infra, the Plaintiffs vigorously dispute the existence of any such facts in this case.


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1. To the Extent They Were Able, the Mohawks Did Challenge The Defendants' Rights to Their Lands.

As discussed above, in at least three instances, the Mohawks sued to directly claim

title to their lands. See Deere, supra (a representative of the "St. Regis Tribe of Indians"

sought ejectment, an equitable remedy, against the State, the Power Company and others

with regard land acquired in violation of the Trade and Intercourse Act); Franklin County,

supra, (the United States, as trustee for the St. Regis Mohawk Tribe, sought a declaratory

judgment, an equitable remedy, that the State had violated the Trade and Intercourse Act

when it acquired land in the Hogansburg Triangle without congressional authorization or

approval); St. Regis Tribe of Mohawk Indians, supra, (the St. Regis Mohawk Tribe sued the

State in state claims court challenging the validity of state title to the Islands and seeking

more than $33 million for the State's appropriation of the Mohawks' land).43

2. State Law Essentially Precluded the Filing of Such Indian Land Claims Until 1937.

Fundamental to any laches determination is the principle that a delay in filing suit

cannot be deemed unreasonable if the party did not have an adequate and effective

opportunity to assert its rights in a court with jurisdiction to hear the claim. Galliher, 145

U.S. at 368.

The Mohawks had no such opportunities. Under New York State law, tribal suits

could be brought only in the name of an attorney appointed by the State for the Indian tribe.

43 Identity of claims is not necessary for the court to consider an earlier suit in determining whether the plaintiff unreasonably delayed in filing suit. Rather, "if the former suit had a similar object but proved unavailing, laches does not bar the second suit." Organizations United for Ecology v. Bell, 446 F.Supp. 535, 547 (D. Pa. 1978). Earlier Mohawk attempts to secure their land rights in court had the same object as the suits here, namely to hold the State and its successors in interest accountable for violations of the Trade and Intercourse Act.


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This rule essentially precluded suits by the Mohawks challenging the State transactions that

are the subject of this claim. Based on paternalistic notions of the 19th century, this system

was in place in New York from 1800 to 1937, conveniently, the very time period in which

the Defendants claim the Mohawks should have been asserting their rights. Robertson Dec.,

¶¶ 11-19. Under these arrangements, the filing of a lawsuit to recover Mohawk lands

depended entirely on the discretion of an attorney appointed and paid by the State and bound

by State law, including the law under which the state purchases at issue in this case were

made. Id.

The 1808 statute designating the district attorney as the lawyer for the St. Regis

Indians directed that legal actions were to be commenced as the attorney "may find proper

and necessary." Robertson Dec., ¶ 14. New York courts soon interpreted such statutes as

providing the exclusive means by which tribal suits could be brought. See Jackson ex dem

Van Dyke v. Reynolds, 14 Johns. 335 (1817); Robertson Dec., ¶¶ 17, 18. A system in which

only an agent paid by the principal tortfeasor and subject to that tortfeasor's rules of

employment could file suit virtually guaranteed that no suit for recovery of lands lost in

violation of the Trade and Intercourse Act would be brought, particularly since the land sales

were considered valid under state law.44 Simply put, the agents had no authority to

challenge transactions considered lawful pursuant to state law. The historical record is

unequivocal that no agent or attorney appointed by the State of New York ever filed a single

claim to the lands obtained by the State in violation of the Trade and Intercourse Act.

44 Research has uncovered only two suits brought by the district attorney on behalf of the "St. Regis Indians," neither of which concerned the State's violations of the Trade and Intercourse Act. St. Regis Indians v. Drum, 19 Johns. 127 (1821) (nonsuiting action of assumpsit for use and occupation of Mohawk land brought against non-Indian lessee); St. Regis Indians v. James Spencer, attached to Robertson Declaration as Attachment A (1821 action on a note).


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Two examples further illustrate how this arrangement operated to discourage suits by

the Mohawks in the name of the Akwesasne community. In 1846, William Almon Wheeler

was appointed as the Mohawks' attorney. His political ambitions – he eventually served as

Vice President of the United States – made it all but certain that he would not challenge the

State's title to Mohawk lands. Robertson Dec., ¶ 24.

In addition, evidence establishes that at least one attorney, Alfred Fulton, appointed

by the State to represent Mohawk interests in 1869, Exhibit 9, actually purchased and held

land in the claim area during the time he was responsible for defending Mohawk land rights.

See Thomas Dec., Attachment G at 4. Where the Mohawks were limited to suits initiated by

their appointed attorneys, where such attorneys were bound by the terms of their

appointments to uphold the very state laws challenged by the Mohawks in this action, and

where the attorneys had – and acted upon – their own financial interests in the subject land,

no fault can be ascribed to the Mohawks for the failure to initiate lawsuits, and any delay

attributed to this period cannot be deemed unreasonable for laches purposes.

3. Federal Courts Were Also Considered Closed to Indians. It is well settled that delay is excused where applicable law would have required the

dismissal of a suit brought earlier. In re Beaty, 306 F.3d 914, 927 (9th Cir. 2002); Travelers

Ins. v. Cuomo, 14 F.3d 708, 714 (2d Cir. 1994) (previous law "created little hope for success

of future challenges"), rev'd on other grounds, 514 U.S. 645 (1995); Aluminum Fab. Co. v.

Season-All Window Corp., 160 F.Supp. 41, 46 (S.D.N.Y. 1957) ("To hold the plaintiffs guilty

of laches for failing to institute a suit which the courts have held would have been futile,

would produce a ludicrous result.").


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The Mohawks were also justified in believing that the federal courts were closed to

Indian land claims until recently. Jurisdiction based on diversity of citizenship has never

been available to the Mohawks. Robertson Dec., ¶¶ 49, 50. Federal question jurisdiction

was not established as a viable route to federal court until 1974, when the U.S. Supreme

Court decided the first Oneida case. Oneida Indian Nation v. Oneida County, 414 U.S. 661

(1974) (Oneida I) (upholding federal question jurisdiction for the first time over Indian land

claims based on the Trade and Intercourse Act). See Robertson Dec., ¶¶ 51-53.

The unavailability of the federal courts as avenues of redress especially resonated

with the Mohawks, who had unsuccessfully sued in federal court in 1927 to challenge New

York State's unlawful acquisition of Mohawk land. In Deere, supra, the federal district court

dismissed the case for lack of a federal question on the face of the complaint, and the Court

of Appeals affirmed. This ruling was not overturned by the Supreme Court until Oneida I in

1974.

Despite these obstacles, the Mohawks persisted in asserting their rights by whatever

means appeared to be available. Shortly after the capacity to sue question had been resolved

in 1952 and 1953, Robertson Dec., ¶¶ 43, 44, the Mohawks brought the St. Regis case

concerning the islands.

4. The Mohawks Sought Alternative Relief.

Also pertinent to the reasonableness of "delay" are the persistent efforts of the

Mohawks over many years to protest the State's unlawful acquisition of their lands before the

legislative and executive branches of the State and Federal Governments. In the early 1840s,

the St. Regis Mohawks petitioned the Commissioners of the State Land Office "for a

conveyance to them of certain islands in the River Saint Lawrence, or an equivalent in


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money." Whiteley Dec., ¶ 25. When that effort failed, they petitioned the State Legislature,

and in 1856 won recognition of their title to the islands.

In 1888 testimony before the New York State Committee to Investigate the Indian

Problem in New York," the so-called Whipple Committee, Mohawk representatives made it

clear that the land sales to New York were illegal because the Mohawk chiefs had not

authorized them, and that the Tribe still owned the entire six mile square set aside by 1796

Treaty. Whiteley Dec., ¶ 32.

Again in 1922, before a state legislative committee known as the Everett

Commission, Mohawk representatives strongly protested New York State's long conduct of

illegality with regard to lands protected by the 1796 Treaty. Referring specifically to New

York's acquisition of Mohawk lands, the Mohawk representative unambiguously put New

York State on notice that the Mohawks did not acquiesce in the violations of their land rights:

"I take the stand at this Conference in this Capitol today and maintain that all purchases made

by the State of New York for the possession of Indian lands within the boundary of an Indian

reservation in the State of New York, without the authority of the Federal Government is

(sic) illegal." Statement of Michael Solomon, February, 1922, quoted in Whiteley Dec., ¶ 38,

p. 65.

In 1929, following the loss in the Deere case, the Mohawks, along with the Six

Nations Confederacy, sought relief for their land rights violations from Congress. Lacking

the means to mount a formal lobbying campaign, the Mohawks submitted a petition which

they hoped would spur Congress to provide redress for the State's violations of federal law.

The petition charged inter alia, that "the State of New York has taken [Six Nations] lands

illegally;" that the Six Nations had "vigorously protested to the Federal Government through


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the years, so that no statute of limitations can run against them;" and that "the law of laches

does not apply to people who have no power to sue." Whiteley Dec., ¶ 38, p. 69. (Emphasis

added). The petitioners thus lodged a protest about New York's conduct and summarized

prior efforts and obstacles to obtaining just relief.

Although the case at bar does not concern jurisdiction, to the extent the Defendants

argue otherwise, the historical record shows the Mohawks vigorously and persistently

protested New York State's unilateral assertions of jurisdiction over them and the lands

protected by the Treaty of 1796. One example stands out in this long history: Mohawk

protests of New York's assertion of jurisdiction over Mohawk fishing rights, which one

observer has characterized as a history of "constant appeals covering a period of over one

hundred fifty years." Whiteley Dec., ¶ 38, p. 70. Plainly the Mohawks have not acquiesced

in New York State's assertions of jurisdiction.

C. The Defendants Have Not Met Their Burden of Showing Prejudice.

The Defendants have not suffered legally cognizable prejudice. In Cayuga, a hearing

produced evidence regarding prejudice. In Oneida, the court's holding was based on

"undisputed facts as developed by the parties" in both the District Court and in Sherrill.

2007 WL 1500489 at *7. In contrast, in the case at bar, the Defendants either assume

prejudice or rely on the consequences of losing the lawsuit as the basis for prejudice. It is

well settled that "the mere prospect that a defendant might lose a case does not suffice to

warrant the imposition of laches as a barrier to a plaintiff's action." Wauchope v. U.S. Dept.

of State, 985 F.2d 1407, 1412 (9th Cir. 1993). The Defendants' argument is in effect that

they would be harmed if relief is granted to the Mohawks. That argument erroneously ties

prejudice to the nature of the Mohawks' claims, rather than to alleged delay in filing them.


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The Defendants thus complain about a kind of prejudice that every defendant can claim.

That form of prejudice is not relevant to the laches determination. TransWorld Airlines, Inc.

v. American Coupon Exchange, 913 F.2d 676, 696 (9th Cir. 1990).

Prejudice in the laches sense is of two kinds: (1) the delay has resulted in the loss of

evidence that would support the defendant's position in the litigation, Goodman v.

McDonnell Douglas Corp., 606 F.2d 800, 809 n.17 (8th Cir. 1979); or (2) the defendants

have changed their position in a way that would not have occurred if the plaintiff had not

delayed. Conopco, Inc. v. Campbell Soup Company, 95 F.3d 187, 192 (2d Cir. 1996). The

Defendants have not met their burden of showing prejudice in either sense.45

The Defendants do not claim, nor could they, that the passage of time between the

State's acquisition of the Mohawks' land and the filing of these suits has made their defense

more difficult from an evidentiary perspective. The legal and factual issues in the case can

be resolved without the testimony of persons who witnessed the transactions, and the

45 In the Oneida ruling, the District court examined three central factors to determine which of the Oneidas' claims were barred by laches: (1)"The transactions at issue before the Court are of particularly ancient pedigree; however, the Plaintiffs did not seek redress until relatively recently." 2007 WL 1500489 at *5; (2) "Most of the Oneidas have lived elsewhere since the mid-nineteenth century and the land in the claim area has a distinctly non-Indian character;" Id. at *6; (3) "Non-Indians have greatly developed the area in question and have justified expectations that they will continue to maintain their lives there." Id. These factors also appear to address the prejudice factor. If this Court chooses to consider these factors, we establish above that we meet these tests. The Mohawks sought redress for the challenged transactions promptly and repeatedly, and have remained in the Hogansburg and Fort Covington claim areas, which have longstanding Indian character. Further, non-Indians have neither greatly developed the claim area nor developed justifiable expectations about their ownership and jurisdiction there. To the contrary, the Hogansburg Triangle and Ft. Covington claim areas are largely rural; Mohawks have contributed to what modest development has occurred there; and Mohawks have occupied, claimed, and asserted authority over the area. The Islands Claim areas also meet these criteria. See discussion above at pp. 23, 29-31.


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documentary evidence that is necessary is readily available in public archives. From the

beginning, New York Indian land claims have been resolved on the basis of historical

evidence, without questions having been raised regarding the adequacy of such evidence to

fairly resolve the claims. See, e.g., Oneida Indian Nation of Wisconsin v. State of New York,

732 F.2d 261, 265 (2d Cir. 1984) (Where the Court noted that "[u]nlike the traditional trial of

an issue of fact . . .", the trial court will consider issues of law against a historical background

and consider contemporaneous documents and oral tradition as interpreted by expert

testimony of historians and others.).

Neither is the second prejudice prong applicable here. To show unfairness from

reliance on the plaintiff's delay, the defendant must show the plaintiff stood by passively,

refusing to file suit while knowing the defendant was changing its position in reliance on the

plaintiff's inactivity. See Lake Caryonah Imp. Ass'n v. Pulte Home Corp., 903 F.2d 505, 510

(7th Cir. 1990). As discussed above, the facts here show a far different course of conduct on

the part of the Mohawks, who acted whenever the opportunity presented itself, and struggled

for decades to overcome legal and practical obstacles to filing suit sooner. Under these

circumstances, the Defendants were not justified in relying on any perceived inaction or

acquiescence by the Mohawks. The record shows the Mohawks in fact did not acquiesce,

and that the Defendants were well aware of the Mohawk claims.

Moreover, the State cannot reasonably claim any expectation-based prejudice because

it was not justified in believing its conduct in acquiring Mohawk lands was lawful and

proper. The best evidence that the State knew it could not acquire Mohawk land without the

authorization and approval of Congress is the 1796 Treaty with the Seven Nations of Canada,

the legal basis of the Mohawks' claims in this case. That Treaty was negotiated with the


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"agents for the state" of New York "in the presence, and with the approbation of the [federal]

commissioner" under the provisions of the Trade and Intercourse Act. In accordance with

the Act, the Treaty did not become legally effective until ratified by the President and

approved by Congress and proclaimed on January 31, 1797. 7 Stat. 55. See also Oneida

Indian Nation of New York v. County of Oneida, 434 F.Supp. 527, 534 (N.D. N.Y. 1977)

(noting Governor John Jay's request to Secretary of War Timothy Pickering for the

appointment of a federal commissioner for the purpose of negotiating a treaty between New

York State and the "St. Regis Indians."). The State thus knew of the legal requirements for

federal approval, and could not have reasonably believed, in light of its experience with the

1796 Treaty, that its subsequent acquisition of Mohawk land without congressional approval

was lawful. The State cannot claim surprise by the Mohawks' subsequent legal challenge to

those State acquisitions not approved by Congress. "A defendant who acts with wrongful

intent is not entitled to benefit from the equitable defense of laches." King v. Allied Vision,

Ltd., 807 F.Supp. 300, 306 (S.D.N.Y. 1992) (citations omitted).

In addition, in light of the decades-long conduct of the State in violating the Trade

and Intercourse Act, it is reasonable to suppose that the State would have continued to defy

federal authority over Indian land transactions even if the Mohawks had had the capacity to

sue to stop the illegal conduct in a court that had jurisdiction at the time. "Reliance is not

established where a defendant would have pursued the same course of conduct even if the

plaintiff had filed its suit earlier." Id.

The Defendants' claims of economic prejudice ring hollow. Even if, contrary to the

historical record, the Mohawks had failed to protest the unlawful sales of their lands and thus

had not repeatedly put the Defendants on notice as to their claims, large parts of the Mohawk


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land claim area remain rural, undeveloped, and – in many cases – occupied by Mohawks,

precluding any argument by the Defendants that these areas have been developed in reliance

on Mohawk acquiescence in the illegal sales. The Long Sault Islands have never been

inhabited. Whiteley Dec., ¶ 31, p. 45. Barnhart and Croil Islands remain largely

undeveloped. See discussion above at p. 25. Much of the development of Barnhart and

Baxter Islands that occurred historically, as well as development of numerous areas in the

mainland Mohawk land claim, largely occurred under leases granted by the Mohawks to non-

Indians in the late 18th and early 19th centuries. Whiteley Dec., ¶¶ 20, 22 and 23.

As noted, the demographics, land ownership patterns and character of the mainland

claim areas have a distinctly Mohawk quality, in contrast to the subject land in Cayuga and

Oneida, where the court found that the Indians had been removed or left the area and retained

few ties to their aboriginal territory.

Under these circumstances, prejudice cannot be presumed, and the Defendants have

not met their burden of proving economic prejudice. Because much of the small amount of

development that did occur took place very shortly after the State acquired the land from the

Mohawks and conveyed it to third parties, the asserted prejudice suffered by the Defendants

is not tied to any delay on the part of the Mohawks. The essential causal connection between

the "delay" and the prejudice is missing. Stated another way, under the Defendants' view of

prejudice, the timing of the Mohawks' suit would be irrelevant; third party landowners who

developed their land would suffer prejudice even if the Mohawks had had the ability to sue

and did so within a relatively short period after their dispossession. In this context, it is

relevant that in 1795, the statute of limitations for actions to recover real property in New


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York was 50 years. See Oneida II, 470 U.S. at 258 n.6 (Stevens, J. dissenting) (citing 1788

N.Y. Laws. ch. 43, p. 685).

Part VI - The Second Circuit's Ruling in Cayuga Violates the Principles Set Forth in Oneida I and II and the Narrow Scope of the Sherrill Ruling.

The Mohawks adopt by reference the arguments presented by the United States that

challenge the Cayuga decision as at odds with the Supreme Court's ruling in Oneida I and II

and jurisprudence governing laches and other equitable defenses, and as not mandated by the

Supreme Court's ruling in Sherrill.

Conclusion

Based on the foregoing, this Court should convert the Defendants' motions for

judgment on the pleadings to motions for summary judgment, should fully consider the

Mohawk Plaintiffs' evidence regarding disruption and laches, and should deny the

Defendants' Motions.

Respectfully submitted, /s/_____________________________________ Marsha K. Schmidt (NDNY Bar No. 512364) ([email protected]) /s/___________________________________ Michael L. Roy (NDNY Bar No. 512365) ([email protected]) Hobbs, Straus Dean & Walker, LLP 2120 L Street, N.W. Suite 700 Washington, D.C. 20037 (202) 822-8282 Counsel for the St. Regis Mohawk Tribe


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/s/______________________________________ Alexandra C. Page (NDNY Bar No. 512731) Indian Law Resource Center 601 E Street, S.E. Washington, D.C. 20003 (202) 547-2800 ([email protected]) /s/_______________________________________

Curtis Berkey (NDNY Bar No. 101147) Alexander, Berkey, Williams & Weathers, LLP 2030 Addison Street, Suite 410 Berkeley, CA 94704 (510) 548-7070 ([email protected])

Counsel for the Mohawk Nation Council of Chiefs


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CERTIFICATE OF SERVICE I hereby certify that on this 13th day of July, 2007 I electronically filed the foregoing THE ST. REGIS MOHAWK TRIBE AND THE MOHAWK NATION COUNCIL OF CHIEFS OPPOSITION TO THE DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS with the Clerk of Court through the CM/ECF System which sent notification of such filing to the following: Counsel for Defendant State of New York David Roberts Assistant Attorney General c/o Eliot Spitzer, Attorney General State of New York Department of Law The Capitol Albany, NY 12224 Counsel for Municipal Defendants Jan Farr Judith Sayles Hiscock & Barclay P.O. Box 4878 Syracuse, NY 13221 Counsel for New York Power Authority Arthur T. Camboris New York State Power Authority Dept. of Law 123 Main Street White Plains, NY 10601 O. Peter Sherwood Manatt, Phelps & Phillips, LLP 7 Times Square Plaza New York, NY 10036 Counsel for the United States James Cooney Trial Attorney United States Department of Justice Environment and Natural Resources Division Indian Resources Section P.O. Box 44378 L'Enfant Plaza Station Washington, D.C. 20026-4378


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Counsel for the People of the Longhouse Alexandra C. Page, Esq. Indian Law Resource Center 601 E. Street, SE Washington, DC 20003 Curtis Berkey Alexander, Berkey, Williams & Weathers, LLP 2030 Addison Street, Suite 410 Berkeley, CA 94704 Counsel for the Canadian St. Regis Band Harry Sachse, Esq. Sonosky, Chambers, Sachse, Endreson & Perry 1425 K Street, NW Suite 600 Washington, D.C. 20005

s//Marsha K. Schmidt


Civil Action Nos. 82-CV-783, 82-CV-1114, 89-CV-829 IN THE ... · the st. regis mohawk tribe, by the...

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Transcript of Civil Action Nos. 82-CV-783, 82-CV-1114, 89-CV-829 IN THE ... · the st. regis mohawk tribe, by the...