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Circuit court bars Cayuga land suit; Appeal likely; other suits uncertain

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NEW YORK - As shock wears off from the Circuit Court dismissal of the
Cayuga land suit, about the only certainty is that it will be appealed.

The 2 - 1 ruling by the U.S. 2nd Circuit Court of Appeals June 28 relied on
the Supreme Court's recent City of Sherrill v. Oneida Indian Nation of N.Y.
decision to throw out 25 years of litigation, a jury trial verdict and a
District Court judge's award of nearly a quarter of a billion dollars in
favor of the Cayugas.

But the immediate reaction of Indian law practitioners was that the
decision by Circuit Court Judge Jose Cabranes went far beyond the purport
of an already harmful Supreme Court ruling. A strong dissent from District
Judge Janet C. Hull, a member of the three-judge panel, raised major
objections that are very likely to be presented to the 2nd Circuit sitting
en banc (that is, with its full membership hearing the appeal).

The last resort would be an appeal to the Supreme Court in the hopes that
it would grant a hard-to-get writ of certiorari to clarify what might have
been unintended consequences of the March 29 Sherrill ruling. The process
could add years of uncertainty to the settlement of a series of New York
state land claims.

The case of one tribe, the St. Regis (Akwesasne) Mohawk, was within one or
two days of final resolution earlier this month. Its tribal council invoked
the threat of continued court struggle as leverage to keep alive a
negotiated settlement which would double the size of its northern New York

Appealing to Gov. George Pataki to honor the settlement, St. Regis Tribal
Chief James W. Ransom said the Cabranes decision "can be appealed and will
continue to be litigated in the courts for several more years, thereby
exposing all concerned parties to more uncertainty and exorbitant legal

The deal, approved by all of the Akwesasne communities and their neighbors,
was days away from final passage in the state Legislature in late June when
it was stalled in the state Senate by lobbying from out-of-state tribes
looking to enter the potentially lucrative Catskills casino market.

The Cayuga Indian Nation began its suit in 1980 to regain 64,015 acres
around the northern shores of Cayuga Lake. U.S. District Court Judge Neil
P. McCurn ruled in 1990 that the land was illegally conveyed to New York
state in 1795 and 1807. The Seneca-Cayuga Tribe of Oklahoma joined the suit
the next year. Both tribes reached tentative settlements with the state
last year, accepting a $100 million cut in the court award in return for
casino compacts in the Catskills. But the Cayuga Nation signer, Clint
Halftown, repudiated it shortly after; and the nation has since been
embroiled in a leadership conflict.

A Cayuga Nation enterprise, LakeSide Trading, currently operates two gas
stations and small Class II casinos near Cayuga Lake.

The fate of three or more tribal casinos in the Catskill Mountains resort
area, a day trip from New York City, is one of the lesser uncertainties
created by the Cabranes decision - itself a result of the turmoil following
the Sherrill case. The Circuit Court decision, basically saying the Cayugas
waited too long to bring their complaint, could wipe out the quest of all
tribes for long-deferred justice.

"This is huge," said Douglas Luckerman, a Massachusetts-based lawyer
specializing in tribal sovereignty cases. "It's a paradigm shift."

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Luckerman said the Cabranes decision appeared to go far beyond the Sherrill
opinion by Supreme Court Justice Ruth Bader Ginsburg. The Supreme Court
left "undisturbed" its original rulings allowing the Oneida land claims.
But Cabranes used Ginsburg's discussion of the "laches doctrine" to reverse
the entire Cayuga action.

According to "Black's Law Dictionary," laches means that the long passage
of time can prevent a party from bringing a suit for damages, if it puts
the defendant at a disadvantage.

Wrote Cabranes, "In another case raising land claims stemming from
late-eighteenth century treaties between Indian tribes and the State of New
York, the Supreme Court recently ruled that equitable doctrines - such as
laches, acquiescence and impossibility - can be applied to Indian land
claims in appropriate circumstances. [citing to Sherrill]

"Based on Sherrill, we conclude that the possessory land claim alleged here
is the type of claim to which a laches defense can be applied."

Cabranes acknowledged that he made a series of stretches in applying
Sherrill, which he said "dramatically altered the legal landscape."

He wrote, "One of the few incontestable propositions about this unusually
complex and confusing area of law is that doctrines and categorizations
applicable in other areas do not translate neatly to these claims." A major
source of the present confusion is the distinction between decisions based
on established legal principles and decision in equity, based on the
judge's sense of a just outcome. Sherrill was an equity case, but Cabranes
imported Ginsburg's "equitable doctrines" into a suit based on law.

He relied on the origin of the Cayuga's complaint as an "ejectment" action,
seeking to evict the people settled on their 64,015-acre "original
reservation." Although District Court Judge Neil P. McCurn ruled out that
remedy in 1999, making it a monetary case, Cabranes said the original
intent was "disruptive" and hence met Ginsburg's criteria for using the
equitable defense.

In a further stretch, he applied laches to the U.S. government, which had
joined the Cayugas as a plaintiff in 1992. Even though the 2nd Circuit had
previously held that laches did not apply to suits brought by the federal
government, Cabranes said Sherrill had "effectively overruled" that

Judge Hull's closely reasoned dissent, although couched in legal terms,
gave Cabranes a stern scolding. The "complexity" of this area, she wrote,
"is best addressed by relying on relevant precedent and established

Although her 17 pages of argument suggest that the case is not yet closed,
opponents of the tribes were jubilant. "BREAK OUT THE CHAMPAGNE!!!" said
Dick Tallcot, chairman of the Cayuga-Seneca Upstate Citizens for Equality,
representing residents of the Cayuga land claim area.

Pataki joined the celebration. He called the Cabranes decision "a
tremendous victory for the property owners and taxpayers in central New

"For years, we've been fighting to protect the interests of homeowners and
businesses in Cayuga and Seneca counties, and we're pleased that the court
has ruled in our favor," he said in a prepared statement. "We will continue
to take whatever steps are necessary to protect New Yorkers - from Grand
Island to Long Island - as we move forward to resolve any remaining land
claims within the state."