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Old 06-29-2005, 08:21 PM   #1
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second circuit throws out new york state land claim

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FROM: INDIAN COUNTRY TODAY NEWSPAPER

_http://www.indiancountry.com/content.cfm?feature=yes&id=1096411155_
(http://www.indiancountry.com/content...&id=1096411155)

Second Circuit Throws Out New York State Land Claim

(javascript:EmailWindow();) (javascript:PrintWindow();) Posted: June 28,
2005
by: _Jim Adams_ (http://www.indiancountry.com/author.cfm?id=33) / Indian
Country Today


Today's feature article sponsored by _WellPoint, Inc. WellPoint, the
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(http://ad.doubleclick.net/clk;145537...nt.com/careers) NEW YORK - Generations of tribal land claims in New
York state took a devastating blow June 28 in the U.S. 2nd Circuit Court of
Appeals ruling that tribes had waited too long to bring suit.

A three-judge panel barred a suit by the Cayuga Indian Nation of New York
and the Seneca-Cayuga Tribe of Oklahoma, citing the recent U.S. Supreme Court
decision in City of Sherrill v. Oneida Indian Nation of N.Y. The Cayugas had
already won a jury trial and a U.S. District Court award of $248 million.

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

Luckerman said the 2nd Circuit decision by Judge Jose Cabranes appeared to
go far beyond the Sherrill opinion by Supreme Court Justice Ruth Bader
Ginsburg. The Supreme Court said that its original rulings allowing the Oneida land
claims remained undisturbed. 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 treaty 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.''

It remains to be seen whether the decision would be upheld by the full panel
of the 2nd Circuit and whether the Supreme Court would accept the case to
clarify its earlier ruling.

The effect on the whole range of tribal land suits and settlement
negotiations in New York - from the Shinnecock Tribe in Long Island to out-of-state
tribes in Wisconsin and Oklahoma - is at present incalculable.

A completed settlement with the St. Regis Mohawk Tribe that would have
doubled its reservation failed to win passage in the New York Legislature in the
last days of its recent session because of lobbying by the Oneida Tribe of
Wisconsin.
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