Blackbear

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This Message Is Reprinted Under The Fair Use
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_http://www4.law.cornell.edu/uscode/17/107.html_
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FROM: CNN.COM NEWS WEBSITE

_http://www.cnn.com/2005/LAW/06/29/land.claim.ap/index.html_
(http://www.cnn.com/2005/LAW/06/29/la....ap/index.html)

Tribe Loses Land Compensation Appeal
Lawyer says ruling a death knell for Indian land claims
Wednesday, June 29, 2005; Posted: 1:49 p.m. EDT (17:49 GMT)





SYRACUSE, New York (AP) -- A federal court has tossed out a $248 million
award to the Cayuga Indians as compensation for land taken from them in illegal
treaties. Lawyers for the tribe said they would appeal.
In a 2-1 decision, the 2nd U.S. Circuit Court of Appeals Tuesday cited the
Supreme Court's recent ruling in a tax case involving the Oneida Indians and
the upstate New York city of Sherrill. In that case, the nation's high court
said too many years had passed for the Oneidas to claim that reacquired former
reservation lands were tax-exempt.
"The present case must be dismissed because the same considerations that
doomed the Oneidas' claim in Sherrill apply with equal force here," Justice Jose
Cabranes wrote.
In 1994, federal Judge Neal McCurn ruled New York state illegally had
acquired 64,015 acres of Cayuga tribal land in Seneca and Cayuga counties by
entering into invalid treaties.
A jury awarded the two Cayuga tribes $36.9 million in damages in 2000 for the
land's current worth and the loss of two centuries of fair-market rental
value. McCurn added $211 million in interest in 2001.
In the current case, the Cayuga tribes, which currently own no reservation
land in New York state, were seeking affirmation of McCurn's rulings, but they
challenged his determination of damages and interest, saying they were
entitled to $1.7 billion.
The state asked for the award to be reduced, or dismissed.
"This is a complete victory, a complete vindication. The game is over. We
win," said attorney William Dorr, who represented Cayuga and Seneca counties.
Gov. George Pataki called it "a tremendous victory for the property owners
and taxpayers of central New York."
"If this ruling stands up, it will be the death knell for all Indian land
claims based on a historic taking of land," said Martin Gold, the attorney
representing the Cayuga Indian Nation of New York. "But the war is not over."

Copyright 2005 The _Associated Press_
(http://www.cnn.com/interactive_legal.html#AP) . All rights reserved.This material may not be published, broadcast,
rewritten, or redistributed.

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Blackbear

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FROM: THE SYRACUSE POST-STANDARD NEWSPAPER
_http://www.syracuse.com/news/poststandard/index.ssf?/base/news-0/112038007544
510.xml&coll=1_
(http://www.syracuse.com/news/poststa...510.xml&coll=1)
Will Cayuga Land Claim Decision Stand?
Some top experts say judges' ruling is bad, but add reversal is not likely.

Sunday, July 03, 2005
By Mike McAndrew
Staff writer
For 30 years, American Indian nations in New York won almost every major
ruling in their land-claim lawsuits against New York, including a jury trial and
two Supreme Court decisions. They seemed invincible.
But in a span of 91 days, the federal courts have dealt complete reversals to
the state's Indian tribes.
The 2nd Circuit U.S. Court of Appeals ruled Tuesday that the Cayuga Indian
Nation cannot collect on its land claim. A lower court had awarded the Cayugas
$248 million in damages for land New York illegally acquired in 1789. But the
appeals court decided the Cayugas will not get a penny because they waited
too long to sue the state.
With land claims, certainty is an elusive thing, but experts in Indian law
can agree on some points about the changes:
Ö If the Cayuga decision stands, New York suddenly has a strong defense
against land claims across New York.
The state, eager to settle the Cayuga claim, agreed this winter to pay the
Cayugas $150 million, give the Cayugas the right to operate casinos in the
Catskills, and allow the Cayugas to buy 2
2,500 to 10,000 acres in Cayuga and Seneca counties.
The state was offering similar deals to the Oneidas and the Mohawks.
But the new ruling gives New York a legal weapon that it can use to win all
other pending land claim suits, some legal experts say.
The Oneidas, Onondagas, Mohawks and Senecas, like the Cayugas, waited 150
years or more after New York acquired their land before suing.
Circuit used in the Cayuga decision - that the tribes waited too long - to
dismiss those other land claims, said Richard Rifkin, a deputy state attorney
general overseeing the state's defenses in the land claims.
"I don't want to say under no circumstances will any of the other claims
survive," Rifkin said. "On the other hand, the Cayuga decision has significantly
strengthened our legal arguments."
Robert T. Coulter, the Onondaga Nation's land claim attorney and executive
director of the Indian Law Resource Center, said there are differences between
the Cayugas' suit and other claims. The Cayugas sought eviction of homeowners
as part of their damages.
The Onondagas, for example, have only asked the court to declare that New
York illegally purchased 4,000 square miles from them. They have not asked the
court to award the Onondagas any land or money.
"It may be this decision is limited to cases asking for eviction," Coulter
said.
Ö Even the critics of the Cayuga ruling agree that it's tough to overturn an
appeals court decision.
Several experts said the Cayuga ruling is a bad decision because it conflicts
with prior 2nd Circuit and Supreme Court rulings.
It also leaves the appeals court saying that the state illegally took the
Cayugas' land but the Indians cannot collect damages, the experts say.
The critics include University of Connecticut Law School Dean Nell Jessup
Newton, the editor of "Cohen's Handbook of Federal Indian Law"; Bob Batson, who
was former Gov. Mario Cuomo's top land claims negotiator; and Thomas
Sansonetti, who until April was the assistant attorney general in charge of the
Justice Department's division that handles land claim litigation.
Still, the courts are far too unpredictable for anyone to know if the
decision of the three-judge panel in the 2nd Circuit will stand, lawyers say.
The odds don't favor the Cayugas. The 2nd Circuit rarely rehears cases, and
the U.S. Supreme Court (the next level) refuses to consider most appeals.
The Cayugas or the United States, also a plaintiff in the case, can ask all
13 2nd Circuit judges to rehear the Cayuga case. Such a proceeding, called an
"en banc" rehearing, is held if a majority of the 13 judges want it.
The 2nd Circuit's 13 judges decided only five cases this way from 2000
through 2004, records show.
"It's a slim chance," conceded Coulter.
The Cayugas and the United States can also petition the U.S. Supreme Court to
hear an appeal. Last year, the Supreme Court rejected 98 percent of the
petitions for certiorari that it decided.
Coulter said the Supreme Court might be interested in reviewing the Cayuga
decision, however, because the 2nd Circuit wrongly applied the Supreme Court's
March 29 decision in the city of Sherrill's tax case v. the Oneida Indian
Nation of New York.

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In that case, the Supreme Court ruled that Sherrill can tax properties in the
Oneida land claim area that the Oneidas had recently bought from willing
sellers.
The Supreme Court applied the theory of laches - that too much time had
passed since the underlying dispute.
To understand laches, it helps to compare it to a statute of limitations,
which is a time limit set out under law for a case to be brought. Laches is a
concept applied sometimes when there is no specific statute of limitations, as
in land claims. Laches is a flexible legal doctrine that keeps parties from
going to court over old disputes.
In the Sherrill case, the court cited laches in concluding that the Oneidas
could not just assert sovereignty over property they had not possessed and
governed for two centuries.
Ö The Supreme Court decision in the Sherrill case opened the door for the 2nd
Circuit to revisit older decisions.
Why did laches suddenly matter? Back in 1983, the 2nd Circuit found that
laches could not be used as a defense against the Oneida land claim.
The idea of a time limit wasn't resolved by the Supreme Court in its landmark
1985 ruling that the Oneidas had a claim for compensation over the wrongful
possession of Oneida land. That decision gave the legal leverage to New
York's Indian nations.
Twenty years later, when it ruled against the Oneidas in the Sherrill tax
case, the Supreme Court said it was leaving "undisturbed" its 1985 decision.
It may have intended no disturbance, but the 2nd Circuit used that opinion to
reverse its 1983 decision on laches. The effect was a legal upheaval.
The Supreme Court ruling in Sherrill didn't compel the 2nd Circuit to rule
against the Cayugas, said Ira Sacks, the New York attorney who successfully
represented Sherrill. But, he said, the Supreme Court opened the door for the
2nd Circuit to apply laches against the Cayugas.
"It's a logical extension of the U.S. Supreme Court decision in Sherrill," he
said.
Other experts disagreed.
The 2nd Circuit disregarded the Supreme Court instruction that its 1985
Oneida land claim ruling was still good law, said Robert Odawi Porter, director
of Syracuse University's Center for Indigenous Law.
Coulter said the 2nd Circuit's reversal on its own 1983 ruling is a reason
the Supreme Court might take an interest in the Cayuga case.
Ö The 2nd Circuit didn't address why the Cayugas took 200 years to sue.
Indian law experts criticized the 2nd Circuit's Cayuga decision because they
said it ignored the legal and practical obstacles that prevented Indian
tribes from filing land claim suits sooner.
Coulter said that a 1929 court ruling in a Mohawk land case precluded tribes
from getting land claim cases heard in federal court for four decades.
Porter said the Cayugas cannot be faulted for delays because Indian tribes

could not legally bring land claim suits in federal court until 1966, when the
federal civil rules changed.
Before that, Indian tribes were considered wards of the state and could not
sue on their own, he said.
In addition, because of the loss of their land and discrimination they faced
in America, Indian tribes lacked the resources to hire attorneys and file
land claim suits, Coulter said.
Ö Courts may be reacting to the emergence of Indian gambling.
Newton, the Connecticut dean, said it may have been easier for courts to
grant the victories to American Indian tribes 20 years ago because those motions
did not require decisions about damages.
"Maybe part of it is that it's one thing to win on a noble, abstract
principle - that this land was stolen from you," she said. "It's another thing to
then figure out how that principle works its way out."
The public's perception of Indians has changed in recent decades, too, and
that may have influenced the courts, Newton said.
"Indian gaming is always in the background now. It wasn't then (in 1985),"
she said. "It's easier to be sensitive to Indians when they are poor and
traditional and different, and we can romanticize it more. When people think of
land claims now, they think of casinos."
Newton said the Sherrill and Cayuga decisions read like cases where the
courts figured out what end result they wanted, and then crafted a legal argument
to support it.
Porter agreed it was easier for the courts to rule for the Indians when the
decisions didn't involve imposing potentially painful damages on non-Indians.
"After all of these years, the courts are finally getting cases involving
remedies," he said. "And the courts don't like the remedies that are being
developed."
Ö New York shouldn't gloat.
It's too early for New York to claim victory, said Sansonetti, the former
Justice Department chief.
"The pendulum swung some. You had two adverse decisions (for the Indians).
The pendulum can swing back again, too."

__________________
Don't worry that it's not good enough for anyone else to hear... just sing, sing a song.