Amicus Curiae Brief — Countyof Oneida v. Oneida Indian Nation of NY

-—

" . [ Office Supreme Court, U.S

Nos. 83-1065, 83-1240 FILED

IN THE JUN 14 1984

Supreme Court of the Anitey States

CLERK

October Term, 1983

Tue County or Onerwa, New York, et al.,

Petitioners,

VS.

Tue Oneina Inptian Nation oF New York Strate, et al.,

Respondents.

Tre State or New York,

Petitioner,

vs.

Tue Onerpa InpIan Nation oF New York Srate, et al.,

’

Respondents.

On Writs of Certiorari to the United States Court

of Appeals for the Second Circuit.

BRIEF OF AMICI CURIAE CITY OF ESCONDIDO,

ESCONDIDO MUTUAL WATER COMPANY, AND

VISTA IRRIGATION DISTRICT IN

SUPPORT OF PETITIONERS.

Paut D. Enostranp, Joun R. Scne.t,

Donan R. Linco.y, Kent H. Foster,

Counsel of Record, Counsel of Record,

Henry E. Heater, Gienn, Wricut, Jacoss & ScHELL,

JENNINGS, ENGSTRAND & 2320 Fifth Avenue, Suite 300,

HENRIKSON, San Diego, Calif. 92101,

A Professional Law Corporation, (619) 239-1211,

2255 Camino del Rio South, Attorneys for Amicus Curiae

San Diego, Calif. 92108, Vista Irrigation District.

(619) 291-0840,

Attorneys for Amici Curiae

City of Escondido and

Escondido Mutual Water

P BEST AVAILABLE COPY

TABLE OF CONTENTS

Interest of Amici Curiae

Summary of Argument

Argument

» ie

The Oneidas’ Claims Are Barred by Applicable

State Statutes of Limitations .

A. Indian Claims Are Subject to Statutes of

Limitations

1. Indian Claims Are Subject to Federal

Statutes of Limitations

2. Indian Claims Are Subject toc State

Statutes of Limitations

Because No Federal Statute of Limitations

Expressly Applies to Respondents’ Claims,

the Court Should Apply the Applicable State

Limitations Period

1. 28 U.S.C. Section 2415 Does Not Apply to

the Indians’ Claims

a. Section 2415 Was Not Intended to

Apply to Claims Brought by Indian

Tribes

. There Is Nothing Anomalous in

Applying Different Limitations Sta-

tutes to Indian Tribes and the United

States

2. Absent an Express Federal Limitations

Period, Federal Courts Apply Analogous

State Statutes of Limitation

3. Application of New York Limitations

Statutes Would Not Be Inconsistent

With the Alleged Federal Rights As-

serted by the Oneidas

II.

The Oneidas’ Claims Also Are Barred By Laches

and Other Equitable Doctrines ...

A.

Contrary to the Lower Courts’ Rulings,

Courts Have Applied Laches and Other

Equitable Defenses to Bar Indian Claims

Brought by the United States..........

The Lower Court’s Reliance on Ewert v.

Bluejacket Is Misplaced . Rar

In Felix v. Patrick This Court por

Laches to Bar Indian Claims.............

Since Ewert, Courts Have Continued to

Apply Laches to Bar Indian Claims

Application of Laches Is Appropriate in

This Case we

Conclusion

17

21

22

26

S &

A OS ee

‘

:

iii

TABLE OF AUTHORITIES

Cases Page

Adams v. Weeds (1805) 6 U.S. (2 Cranch) 336 12, 20

Ahtanum Irrigation Dist. v. United States (1956

9th Cir.) 236 F.2d 321, cert. denied (1956) 352

U.S. 988 21

Andrade v. United States (1973 Ct. Cl.) 485 F.2d

660, cert. denied (1974) 419 U.S. 83 4, 5, 20, 26

Armstrong v. Maple Leaf Apartments Ltd. (1979

10th Cir.) 622 F.2d 466, cert. denied (1980) 449

U.S. 901 26

Ashland Oil Co. v. Union Oil Co. of California (1977

Em. Ct. App.) 567 F.2d 984, cert. denied (1978)

435 U.S. 994 19

Barker v. Harvey (1901) 181 U.S. 481 4, 22

Barnett v. Riggs National Bank (1957 D.D.C.) 154

F.. Supp. 75 26

Board of County Commr’s v. United States (1940)

308 U.S. 343 12, 21

Board of Regents v. Tomanio (1980) 446 U.S. 478

16, 17, 18, 19, 20

Campbell v. Haverhill (1895) 155 U.S. 610 16

Capitan Grande Band of Mission Indians v. Helix

Irrigation Dist. (1975 9th Cir.) 514 F.2d 465,

cert. dented 423 U.S. 874 ll

Capoeman v. United States (1971 Ct. CL) 440 F.2d

1002 4, 20

Chattanooga Foundry & Pipe Works v. City of

Atlanta (1906) 203 U.S. 390 15, 16

Cherokee Nation v. Southern Kansas Ry. (1890)

135 U.S. 641 30

iv

Page

Chitimacha Tribe of Louisiana v. Harry L. Laws

Co. (1982 5th Cir.) 690 F.2d 1157, cert. denied

(1983) _ U.S. —, 78 L.Ed.2d 83 5

Covelo Indian Community v. Watt (1982 D.C. Cir.)

551 F. Supp. 366 28

Crown Coat Front Co. v. United States (1967) 386

U.S. 503 | 8

Erie R.R. v. Tompkins (1938) 304 U.S. 64 15

Escondido Mutual Water Co. v. La Jolla Band of

Mission Indians (1984) _ U.S. —_, 52 U.S.L.W.

4588 2,15

Ewert v. Bluejacket (1922) 259 U.S. 129

21, 22, 23, 24, 26, 29

Felix v. Patrick (1892) 145 U.S. 317 24, 25, 28, 29

Fiesel v. Board of Education (1980 E.D.N.Y.) 490

F. Supp. 363 19

Folk v. United States (1916 8th Cir.) 233 F. 177 22

Fort Mojave Tribe of Indians (1976) 210 Ct. Cl. 727 20

Galliher v. Cadwell (1892) 145 U.S. 368 23

Halstead v. Grinnan (1894) 152 U.S. 412 23

Holmberg v. Armbrecht (1946) 327 U.S. 392 __. 16

Hydaburg Co-op Ass’n v. United States (1981 Ct.

CL) 667 F.2d 64, cert. denied (1982) 459 U.S.905 5

International Union, etc. v. Hoosier Cardinal Corp.

(1966) 383 U.S. 696 16 |

Jicarilla Apache Tribe v. Andrus (1982 10th Cir.) |

687 F.2d 1324 26, 27

Kendall v. Ewert (1921) 259 U.S. 139 23

Lamont v. Haig (1982 D. S.Dak.) 539 F. Supp. 5527

Page

Lemieux v. United States (1926 8th Cir.) 15 F.2d

518, cert. dented (1927) 273 U.S. 749 26

Mann v. United States, (1968 9th Cir.) 399 F.2d

672 5, 20

McClung v. Silliman (1830) 28 U.S. (3 Pet.) 270 16

Menominee Tribe of Indians v. United States (1984

Fed. Cir.) 726 F.2d 718 5, 20

Nabors v. National Labor Relations Board (1963 5th

Cir.) 323 F.2d 686, cert. denied (1964) 376U.S.911 13

Narragansett Tribe v. Southern Rhode Island Land

Dev. Corp. (1976 D. R.I.) 418 F. Supp. 798 11

Navajo Tribe of Indians v. United States (1979 Ct.

Cl.) 601 F.2d 536 5, 6

Northern Pacific R. Co. v. Boyd (1913) 228 U.S. 482 23

Occidental Life Ins. Co. v. Equal Employment

Opportunity Comm’n (1977) 432 U.S. 355 16, 18,19

Oliphant v. Suquamish Indian Tribe (1978) 435

U.S. 191 15

Oneida Indian Nation v. State of New York (1982

2d Cir.) 691 F.2d 1070 11

Peshlakai v. Duncan (1979 D.D.C.) 476 F. Supp.

1247 27

Rice v. Rehner (1983) _._. U.S. —____, 77 L. Ed.2d

961, reh’g demied (1983) _.. U.S. ___., 77 L.Ed.

2d 185 15

Rincon Band, et al. v. Escondido Mutual Water Co.,

et al. U.S. Dist. Ct. S.D. Cal. Nos. 69-217-S, 72-

271-S and 72-276-S

Rincon, et al. Bands of Indians v. United States,

Claims Court Docket 80-A 2

L

Page

Runyon v. McCrary (1976) 427 U.S. 160 16

Schrimpscher v. Stockton (1902) 183 U.S. 290 6

Securities and Exchange Comm’n v. Penn Central

Co. (1976 E.D. Pa.) 425 F. Supp. 593 13

Seneca Nation v. Christy (1896) 162 U.S. 283 6

Stewart v. Keyes (1935) 295 U.S. 403 6

Super v. Work (1925 D.C. Cir.) 3 F.2d 90, aff'd per

curiam (1926) 271 U.S. 643 4

United Parcel Service, Inc. v. Mitchell (1981) 451

U.S. 56... 16, 19

United States v. Beebe (1888) 127 U.S. 338 8

United States v. Fort Benning Rifle and Pistol Club

(1967 5th Cir.) 387 F.2d 884 12

United States v. Eaton Shale Co. (1977 D. Colo.)

433 F. Supp. 1256 22

United States v. Ft. Smith & W.R. Co. (1912 8th

Cir.) 195 F. 211 22

United States v. Harpootlian (1928 2d Cir.) 24 F.2d

646 | 8

United States v. Rose (1937 W.D.N.C.) 20 F. Supp.

350 } 22

United States v. Ruby Co. (1978 9th Cir.) 588 F.2d

697, cert. denied (1979) 442 U.S. 917 28

United States v. Summerlin (1940) 310 U.S. 414

| 8,11, 12

United States v. Title Ins. and Trust Co. (1924)

265 U.S. 472 22

United States v. Wheeler (1978) 435 U.S. 313 15

Ute Indian Tribe v. Probst (1970 10th Cir.) 428 F.2d

491 28

Van Horn v. Lukhard (1975 E.D. Va.) 392 F. Supp.

384

Western Shoshone Legal Defense and Education

Ass’n v. United States (1976 Ct. Cl.) 531 F.2d 495,

cert. denied (1976) 429 U.S. 885

Wolfe v. Phillips (1949 10th Cir.) 172 F.2d 481,

cert. denied (1949) 336 U.S. 968

United States Constitution

Art. ITI, § 3, el. 2

Rule

Rules of the Supreme Court of the United States,

Rule 36.2

Federal Statutes

Act of Mar. 1, 1793, 1 Stat. 329

Act of Mar. 2, 1805, 2 Stat. 324

Act of Mar. 3, 1851, 9 Stat. 631

Act of June 2, 1924, 43 Stat. 253

Act of April 12, 1926, 44 Stat. 239

Indian Claims Comm’n Act, 60 Stat. 1049 (former

25 U.S.C. § 70a, § 70k, et seq.)

Pub. L. 92-353, 86 Stat. 499

Pub. L. 92-485, 86 Stat. 803

Pub. L. 95-64, 91 Stat. 268

Pub. L. 95-103, 91 Stat. 842

Pub. L. 96-217, 94 Stat. 126

Pub. L. 97-394, 96 Stat. 1976

11 U.S.C. § 108

25 U.S.C. $177

Page

16

o, 6

8

10

10

10

10

10

12

21

viii

Page

28 U.S.C. § 1652 15

28 U.S.C. § 2401 4, 5, 20

28 U.S.C. § 2415 3, 4, 7, 8,9, 10, 11, 12

28 U.S.C. § 2416 | 11

28 U.S.C. § 2501 4, 5, 20, 26

42 U.S.C. § 1983 17

42 U.S.C. § 2651 | 12,13

State Statutes

N.Y. Civ. Prac. Law § 212(a) 19

N.Y. Civ. Prac. Law § 213.1 _ . | 19

Legislative Materials

H.R. Rep. No. 1534, 89th Cong., 2d Sess. (1966) 8

H.R. Rep. No. 96-87, 96th Cong., 2d Sess. (1980) 10,11

S. Rep. No. 96-569, 96th Cong., 2d Sess. (1980)

, 11, 12, 14

Messing on H.R. 13652 before Subcomm. No. 2

of the House Comm. on the Judiciary, 89th Cong.,

2d Sess. (1966) 8

Hearings on S. 3377 and H.R. 13825 ; Batons the

Subcomm. of Indian Affairs of the Senate Comm.

on Interior and Insular Affairs, 92nd Cong., 2d

Sess. (1972) 9

Hearings Before the Select Committee on Taentify-

ing and Processing of Claims of Indians and

Individuals and Necessity of Extending the Stat-

ute of Limitations, 96th Cong., Ist Sess. (1979).

118 Cong. Rec. 23966 (1972) 7 9

123 Cong. Rec. 22499 (1977) . 10

123 Cong. Rec. 22500 (1977) 11

Page

123 Cong. Rec. 22507 (1977) li

123 Cong. Rec. 22510 (1977) ll

123 Cong. Rec. 22511 (1977) 10

126 Cong. Rec. H1945 (1980) 11

126 Cong. Rec. $1641 (1980) 11

126 Cong. Rec. $1642 (1980) 11

Miscellaneous Texts

Deuteronomy 15:1 20

Federal Indian Law (1958 Dept. of Interior) 5, 14

Special Project, Time Bars in Specialized Federal

Common Law: Federal Rights of Action and

State Statutes of Limitation, 65 Cornell L. Rev.

1011 (1980) 16, 17

Nos. 83-1065, 83-1240

IN THE

Supreme Court of the Anited States

October Term, 1983

THe County or Onema, New York, et al.,

Petitioners,

vs.

Tae Onema Inpian Nation or New York Starz, et al.,

Respondents.

Tue Stare or New York,

Petitioner,

vs.

Tae Onema Iypian Nation or New York Stare, et al.,

Respondents.

BRIEF OF AMICI CURIAE CITY OF ESCONDIDO,

ESCONDIDO MUTUAL WATER COMPANY, AND

VISTA IRRIGATION DISTRICT IN

SUPPORT OF PETITIONERS.

Interest of Amici Curiae.

Amici are the City of Escondido, Escondido Mutual

Water Company and Vista Irrigation District. This brief

is in support of Petitioners Counties of Oneida and Mad-

son, New York and the State of New York.

‘Pursuant to Rule 36.2 Amici have filed letters of consent from

all parties with the Clerk of this Court.

-

Amici are defendants in a suit brought by five Mission

Indian Bands and the Secretary of the Interior: Rincon

Band, et al. v. Escondido Mutual Water Co., et al., U.S.

Dist. Ct., S.D. Cal. Nos. 69-217-S, 72-271-S and 72-276-S.

The Bands and Interior seek to void certain water and

right-of-way contracts and permits, and request declara-

tory and injunctive relief in addition to millions of dol-

lars in damages for alleged breaches of contract, tres-

passes and wrongful diversion of Indian water dating

from 1895.?

A dispositive issue in that case’ is similar to one here

— whether the claims are barred by applicable statutes

of limitations or equitable doctrines such as laches.

*The controversy is being waged in two additional fora: (1)

j . Bands of Indi Se ae

(suit seeking damages for violation of Indian water

(2) ondido Mutual Water Co., et al. v. La Jolla

(Giapute over Federal Roengy Magulosory Cosmmioen's ostoae

(dispute over Federal gy mmission’s jurisdi

tion to license federal power project which crosses Indian lands).

*On January 10, 1980, the district court granted partial summary

judgment ruling that “The affirmative defenses of estoppel, laches,

waiver, federal and state statutes of limitations, adverse possession,

prescription and acquisscence . . . are insufficient as 8 matter of

Although the district court ruled that its decision involved “con-

trolling questions of law as to which there is a substantial ground

for difference of opinion and that an immediate appeal from the

order may ially advance the ultimate termination of the litiga-

tion,” the United States Court of fer the Ninth Circuit

did not permit an interlocutory .

ilies

Summary of Argument.

The Oneidas’ 175-year-old claims are time-barred. Con-

trary to the Second Circuit’s implication, Indian tribes

are subject to applicable federal or state statutes of

limitations. The only issue is which statute applies.

Here, where there is no express federal limitations stat-

ute (28 U.S.C. $2415 is not applicable), the Oneidas’

claims are subject to applicable borrowed state statutes

of limitations. Application of the state limitations period

in this case would not be anomalous or inconsistent with

the federal policies underlying the 1793 Non-Intercourse

Act.

Moreover, these claims are barred by equitable de-

fenses such as laches. The 175-year delay is patently

unreasonable and has prejudiced numerous innocent

third parties.‘

ARGUMENT.

L

THE ONEIDAS’ CLAIMS ARE BARRED BY APPLICABLE

STATE STATUTES OF LIMITATIONS.

The Second Cireuit’s refusal to apply the applicable

state statute of limitations to the Oneidas’ claims (Joint

Appendix (JA) 232a-33a) was based on three erroneous

assumptions: (1) statutes of limitations never run

against Indian land claims; (2) borrowing the state lim-

itations statute would be inconsistent with the federal

policies underlying the 1793 Non-Intercourse Act®; and,

(3) because 28 U.S.C. section 2415 would be the ap-

propriate limitations statute in a suit brought by the

United States, it would be anomalous to apply a differ-

ent limitations statute to the Oneidas’ claims.

‘Although Amici believe that the Second Circuit also erred

in its other holdings, they are briefing only the issue of whether

the Oneidas’ claims are time-barred.

®Act of March 1, 1793, 1 Stat. 329.

— =

Indian land claims, however, are subject to applicable

federal or state statutes of limitations. The only issue

is which limitations period applies. This issue is resolved

by identifying an express federal limitations statute, or

in its absence, borrowing the most analogous state limi-

tations statute. Here there is no express federal limita-

tions statute. Both the express language of 28 U.S.C.

section 2415 and its legislative history confirm that it

was to apply only to the United States — not to Indians

or Indian tribes. Accordingly, the Oneidas’ claims are

subject to the applicable borrowed state statute of limi-

tations.

Contrary to the Second Circuit’s holding, application

of a state limitations statute would not be inconsistent

with the federal policies underlying the 1793 Act. Nor

would it be anomalous to apply a limitations period to the

tribes’ claim that is different from that which would be

applied to a similar suit brought by the United States.

A. Indian Claims Are Subject to Statutes of Limitations.

1. Indian Claims Are Subject to Federal Statutes of Limitations.

Courts always have held that applicable federal stat-

utes of limitations bar Indian claims, See, e.g., Barker v.

Harvey (1901) 181 U.S. 481, 490 (Mission Indian land

claims barred because not presented to the Federal Land

Commission within the two-year period required by the

Act of March 3, 1851, 9 Stat. 631) ; Super v. Work (1925

D.C. Cir.) 3 F.2d 90, aff'd. per curiam (1926) 271 U.S.

643 (Karok Tribe land claims dismissed for failure to

file claims pursuant to the Act of March 3, 1851) ; Capoe-

mon v. United States (1971 Ct. CL) 440 F.2d 1002, 1004

(individual Indian’s suit to recover charges made by the

government incident to its sale of timber on plaintiffs’

trust allotment barred by 28 U.S.C. section 2501); An-

drade v. United States (1973 Ct. Cl.) 485 F.2d 660, cert.

~

demied (1974) 419 U.S. 83 (Pitt River Tribe’s suit to

overthrow a 1964 Indian Claims Commission judgment

barred by the six-year statute of limitations of 28 U.S.C.

section 2501); Hydaburg Co-op Ass’n v. United States

(1981 Ct. Cl.) 667 F.2d 64, 69-70, cert. denied (1982) 459

U.S. 905 (Chartered Indian corporation’s claims for mis-

management of cannery operation barred by 28 U.S.C.

section 2501) ; Chittmacha Tribe of Louisiana v. Harry L.

Laws Co. (1982 5th Cir.) 690 F.2d 1157, 1169, cert. denied

(1983) _ U.S. —_, 78 L.Ed.2d 83 (Tribal land claims

barred for failure to file claims under the Act of March

2, 1805, 2 Stat. 324 et seq.) ; Menominee Tribe of Indians

v. United States (1984 Fed. Cir.) 726 F.2d 718, 720-22

(action for mismanagement of tribe’s forest resources

barred by 28 U.S.C. section 2501).

See also Mann v. United States (1968 9th Cir.) 399

F.2d 672, 673, where the court rejected a Navajo Indian’s

argument that the 28 U.S.C. section 2401’s two-year

period should not apply to him because he was an

Indian and a ward of the government.

Congress has recognized that statutes of limitations

apply to Indians and on several occasions has expressly

modified or waived statutes of limitations for Indians.

See, e.g., Indian Claims Commission Act § 70a, 60 Stat.

1049 (former 25 U.S.C. §70a) which authorized the

Commission to hear claims accruing before August 13,

1946 “on behalf of any Indian tribe band or other identifi-

able group of American Indians . . . notwithstanding any

statute of limitation or laches.”

The Indian Claims Commission Act itself required that

all claims be filed on or before August 13, 1951, section

70k (former 25 U.S.C. § 70k). See, e.g., Navajo Tribe of

Indians v. United States (1979 Ct. CL) 601 F.2d 536

*Other federal statutes have waived statutes of limitations for

Indians. See Federal Indian Law (1958 Dept. of Int.) 351 n.52.

=

(tribal claims withdrawn after 1951 could not be refiled

and were barred by section 70k).

2. Indian Claims Are Subject to State Statutes of Limitations.

Courts also have held that state statutes of limita-

tions can bar Indian claims. In Seneca Nation v. Christy

(1896) 162 U.S. 283, the Seneca Nation sued in state

court for damages and to recover possession of land

taken from them in 1826 pursuant to certain treaties and

compacts. The defendant argued, inter alia, that the

action was barred by a New York statute of limitations.

The trial court ruled for defendants and the New York

Court of Appeals affirmed.

On writ of error, the United States Supreme Court

affirmed, and quoted from the Court of Appeals’ opinion:

“We are also of opinion that [sic because] the right

of the plaintiff to sue was given by and is dependent

upon tie statute, chapter 150 of the Laws of 1845

(see Strang v. Waterman, 11 Paige, 607) the statute

of limitations is a bar to the action.” 162 U.S. at 288.

Other cases applying state statutes of limitations to

Indian claims include: Schrimpscher v. Stockton (1902)

183 U.S. 290, 296-97 (where treaty made Indians citizens’

and subject to the laws of Kansas, individual heirs of

Indian were barred by state statute of limitations from

recovering tract of land); Stewart v. Keyes (1935) 295

U.S. 403, 416-17 (suit by Creek Indians to recover land

was barred by Oklahoma statute of limitations, and to the

extent that Act of April 12, 1926, 44 Stat. 239, purported

to extend statute of limitations for Indians it was void as

a denial of due process); Wolfe v. Phillips (1949 10th

Cir.) 172 F.2d 481, 484-86, cert. denied (1949) 336 U.S. 968

(where Act of April 12, 1926, 44 Stat. 239, made Indians

of five civilized tribes subject to the Oklahoma statute of

"The Act of June 2, 1924, 43 Stat. 253, made all Indians citi-

zens of the United States.

=

limitations, their suit to recover possession of land was

barred by state statute of limitations) ; see also Lamont

v. Haig (1982 D. S.Dak.) 539 F. Supp. 552, 557 n.4 (where

federal common law cause of action for violation of con-

stitutional rights was not subject to express federal

statute of limitations court looked to analogous state

statute of limitations to determine whether Indians’

claims were barred).

Thus, the real issue is not whether statutes of limita-

tions can bar Indian claims, but rather which statute —

federal or state — applies to a given claim.

B. Because No Federal Statute of Limitations Express-

ly Applies to the Oneidas’ Claims, the Court Should

Apply the Applicable State Limitations Period.

No express federal statute of limitations applies to

these Indian claims. The 1793 Act neither expressly

creates nor limits any private cause of action. Its penal-

ties and disabilities, however, do expressly abate after

two years. (See Appendix to Counties’, Petition for Cer-

tierari (PA) 58a)

Contrary to the Second Circuit’s implication (JA 232a-

33a), 28 U.S.C. section 2415 does not apply to claims

brought by Indian tribes. Both its express language and

its legislative history confirm that it was intended to

apply only to claims brought by the United States, and

not to claims brought by Indians themselves, even if they

could have been brought by the United States.

lL. 28 U.S.C. Section 2415 Does Not Apply to the Oneidas’

Claims.

a. Section 2415 Was Not Intended to Apply to Claims

Brought by Indian Tribes.

On its face, section 2415 applies certain limitation pe-

riods only to actions “brought by the United States” (PA

70a-72a).

-_™

Congress’ intent in enacting section 2415 in 1966 was

for the first time to establish statutes of limitations gen-

erally applicable to actions brought by the United States.°

Crown Coat Front Co. v. United States (1967) 386 U.S.

503, 521 n.4; Hearings on H.R. 13652 before Subdcomm.

No. 2 of the House Comm. on the Judiciary, 89th Cong.,

2d Sess. 3-4 (1966); H.R. No. 1534, 89th Cong., 2d Sess.

3-4 (1966).

As originally enacted, section 2415 did not expressly

apply to suits brought by the United States on behalf of

Indians ; however, it did limit suits by the United States

“to recover damages from a trespass on lands of the

United States, including trust and restricted Indian

lands” to a six-year period.’

On July 18, 1972, Congress passed an emergency bill

( Pub.L. 92-353, 86 Stat. 499) which : (a) made the original

six-year limitation periods expressly applicable to

actions for money damages (4 2415(a)) and trespass

damages (§ 2415(b)) brought by the United States “on

behalf of a recognized tribe, band or group of American

Indians” ; and (b) extended the periods for an additional

ninety days. The ninety-day extension prevented expira-

*Prior to its passage, unlike the situation in regard to Indian

aoe supra), statutes of limitations generally had been held

a 2 Ee Se Ce Soe © See 0 See Gee

to private rights. United States v.

Serenertin (1940) 10 US. 414, 416.

The United States has been heid subject to statutes of limitations

where it: (a) sues as a nominal plaintiff to vindicate ivate

rights (see, e.g., United States v. Beebe (1888) 127 U.S. 338); (b)

brings an action under a state statute which creates a right which

ca. Oued Stan Bonouman (idan Bd Ce) 2000 O58"

, United States v. Harpootlian (1928 2d Cir.) 24 F.2d 646);

and, (e) damp & guatnet Go Guansieney ep qapeeed to gulls dit

(See, e.g., United States v. Summerlin, supra.)

*28 U.S.C. section 2415(g) deemed the right of action to have

accrued on the date of enactment (i.¢e., July 18, 1966). Thus

claims by the United States would not have been barred until six

years later (i.e., July 18, 1972).

ain

tion of the original limitations periods pending consid-

eration of other bills which had been introduced which

would further extend the periods. In explaining the need

for the ninety-day extension, Senator Jackson appended

to his remarks a July 14, 1972 Wall Street Journal article

which noted that expiration of the limitations period:

“would prevent the government from seeking pay-

ment for damages more than six years old. Interest

accrued in such cases can be substantial, since Indian

cases sometimes go back 100 years or more. Whether

Indians could file their own suits for financial

damages going back more than six years is unclear,

says a legal official in the Department of the Interior.

The issue will probably have to be settled in the

courts.” 118 Cong. Rec. 23,966 (1972)

Thereafter, during hearings on a five-year extension

before the Subcommittee on Indian Affairs, William A.

Gershuny, Associate Solicitor for Indian Affairs, testi-

fied :

One of the reasons, Senator, why it’s so essential

that the suits be filed, that some claims be filed by the

United States, is the possibility that if the tribe

itself in its own name files the suit it would be subject

to a shorter statute of limitations than would other-

wise be applicable to the Federal Government.

Hearings on S. 3377 and H.R. 13825 Before the Subcomm.

of Indian Affairs of the Senate Comm. on Interior and

Insular Affairs, 92d Cong. 2d Sess. 18-19 (1972).

In concluding his testimony, Gershuny commented on

a suggestion that section 2415 be amended to apply to

actions brought, not only by the United States, but by

the Indians themselves:

Senator Fanin. . . . The legal services suggest that the

words “United States fer or on behalf of” be stricken,

- =

on the theory that should a cause of action be ex-

tended they [Indians] could bring action on their

Mr Gershuny. I have not seen that [suggestion]

before, but it would seem to me, Senator, that their

proposal is based on the erroneous assumption that

Section 2415 is a statute of limi’ ttions, which would

apply to the tribe if it filed its own suit. We don’t

read Section 2415 that way. I have a lot of difficulty

in understanding how 2415 could be applicable if the

tribe itself filed suit. My first reaction, Senator, is

that I think that the proposal is simply bottomed on

a false assumption. Jd. at 23. (emphasis added.)

On October 13, 1972, Pub. L. 92-485, 86 Stat. 803, was

enacted extending the time for the United States to bring

Indian money and trespass claims until July 18, 1977

Congress subsequently enacted other extensions.”

Congressional debates over these various extensions

confirm that Congress did not intend section 2415 to

apply to claims brought by the Indians themselves. See,

e.g., 123 Cong. Rec. 22499 (1977) (remarks of Rep. Cohen,

.. “this bill does not deal with the issue of suits by Indian

tribes”) ; Jd. at 22511 (remarks of Rep. Udall, “Not once

during consideration of [section 2415] was the issue of

Indian claims against third parties raised and no Indian

witnesses were heard. In fact, it is doubtful that Congress

even intended that the act would apply to such Indian

claims.”); H.R. Rep. No. 96-87, 96th Cong., 2d Sess.

“On July 11, 1977, Congress enacted Pub.L. 95-64, 91 Stat.

268, extending the time periods to Au 18, 1977. On A 15,

am Congress enacted Pub.L. 95-103, 91 Stat. 842 the

time periods to April 1, 1980. On March 27, 1980, a

enacted Pub.L. 96-217, 94 Stat. 126 extending the time periods to

December 31, 1982. On December 30, 1982, Congress enacted

Pub.L. 97-394, 96 Stat. 1976, which established the current time

— =

(1980) (“The claims concerning Indians and Indian

tribes which are affected by Section 2415 ... are brought

by the United States as trustee on behalf of the Indians.

The Indians themselves do not bring such actions on their

own behalf.”)*

Thus, the legislative history of section 2415 and its

amendments clearly shows that Congress had no inten-

tion to extend its benefits to suits brought by Indian

tribes or bands.

28 U.S.C. section 2416 is further evidence that Con-

gress did not intend section 2415 to apply to Indian

tribes. Section 2416 establishes certain exclusions from

the time period specified by section 2415 including those

periods of time when the United States cannot be reason-

ably charged with knowledge of the requisite material

facts. No such exclusion, however, is made for Indian

tribes.

b. There Is Nothing Anomalous in Applying Different

Tnmitations Statutes to Indian Tribes and the United

States.

Despite section 2415’s express language and legislative

history, the Second Circuit erroneously concluded that

it would be anomalous to allow the United States as

trustee to sue under more favorable conditions than those

afforded the tribes themselves. (JA 232a). This holding

"See also 123 Cong. Rec. at 22500 (remarks of Rep. Foley);

Id. at 22507 (remarks of Rep. Dicks); Jd. at 22510 (remarks of

Rep. Yates); 126 Cong. Rec. H1945 (1980) (remarks of Reps.

Danielson and Marienee); Jd. at $1641 (remarks of Sen. Melcher);

Id. at $1642 (remarks of Sen. Cohen); but cf. S. Rep. No. 96-569,

96th Cong., 2d Sess. (1980) 4.

‘The courts which have reached similar conclusions (see ¢.g.

Capitan Grande Band of Mission Indians v. Helix Irrigation Dis-

trict (1975 9th Cir.) 514 F.2d 465, 469-71, cert. denied 423 U.S.

874; Narragansett Tribe v. Southern Rhode Island Land Dev.

Corp. (1976 D.R.1.) 418 F. Supp. 798, 805; Oneida Indian Nation

v. State of New York (1982 2d Cir.) 691 F.2d 1070, 1083-84)

(footnote continued on following page)

—- =

ignores the very fundamental policy considerations which

exist in a suit by the United States as opposed to an

Indian tribe.

The United States, because of its unique position of

public trust, historically has been entrusied with the

traditional, although diminishing (see, e.g., 28 U.S.C.

§ 2415), right of the sovereign to be free from the appli-

cation of statutes of limitation, whether it sues on its own

behalf (United States v. Summerlin, 310 U.S. 414, 416

(1940)) or in its role as a trustee” to protect restricted

Indian property. Board of County Comm'rs v. United

States (1940) 308 U.S. 343, 351.

Courts consistently have held that where the United

States sues to enforce public rights in its role as a fidu-

ciary or trustee, such an action is not subject to borrowed

state limitations periods which would bar suits by indi-

vidual beneficiaries to enforce identical rights. (See, e.g.,

United States v. Fort Benning Rifle and Pistol Club

(1967 5th Cir.) 387 F.2d 884, 887 (The United States’

subrogated right to recover medical expenses provided an

injured person under the Medical Care Recovery Act, 42

committed the same errors. Although each court conceded that sec-

tion 2415 was not intended to apply to suits by Indians, each con-

cluded that it should nevertheless apply because it would be

anomalous to apply a different limitations period. Their conclu-

sions ignore the fact that if Congress did not intend section 2415

a0 apply, it eaust live tntgnded cote otter tindindlons pasted to

apply. See, e.g., Adams v. Weeds (1805) 6 U.S. (2 Cranch) 336,

342. As did the Second Circuit, they also erroneously concluded

that Indian tribes stand in the shoes of the United States when they

sue. These cases help explain the aberrant remarks in S. Rep. No.

96-569, supra n. 11, whch are contra to all other indicia of Con-

gressional intent.

‘*There is nothing anomalous about a trustee being given a

longer limitations period to assert a right than that given his bene-

ficiary to assert the same right. For example, the Bankruptcy Code,

11 U.S.C. section 108, provides a trustee who into the shoes

of a debtor a longer period of time to file a petition than that en-

joyed by the debtor.

—13—

U.S.C. section 2651, et seq., was not subject to the state

statutes of limitations that would have barred the injured

person’s claim); Nabors v. National Labor Relations

Board (1963 5th Cir.) 323 F.2d 686, 688-89 (Back pay

claims brought by United States on behalf of private in-

dividuals were not barred by state statute of limitations

applicable to private actions because the United States

was suing to enforce public rights) ; Securities and Ex-

change Comm’n v. Penn Central Co. (1976 E.D. Pa.) 425

F’. Supp. 593, 599 (SEC’s suit to force disgorgement of

money unlawfully obtained was not barred by state

statutes of limitations that would apply to the individual

investors because Commission was “acting in accordance

with its public responsibilities on behalf of the public

interest.”’).)

Here, the Second Circuit erroneously concluded that

the Oneidas merely are asserting the same rights that

the United States would have been asserting had it

brought suit. The Oneidas, however, are suing to vindi-

cate tribal interests, not the public interest that would

have been represented by the United States had it sued.

The difference between what the United States views

as its public interest in this suit as opposed to the tribal

interest represented by the Oneidas is illustrated by the

simple fact that the United States did not elect to sue in

this case. Instead, the United States has indicated to the

Oneidas that it believes that it fulfilled its duty to them

by providing a forum (Indian Claims Commission) for

determining whether they should be compensated for

injuries allegedly sustained as a result of their early

dealings with the State of New York. (JA 42a-44a).

The United States correctly views the public interest

in this case as different from the Oneidas’ interests.

Unlike the Oneidas, the United States does not represent

only a single segment of society. It is presumed to act

=o

in the best interests of all people when it sues to enforce

a public right."*

Thus in exercising its discretion not to sue in this case,

the United States undoubtedly considered its trust re-

sponsibilities to the nation as whole and concluded that it

would be inequitable to press 175-year-old claims against

innocent parties where both it and the Indians had slept

on their rights. The United States also may have believed

that the problem should be resolved through the legisla-

tive process. In any event, its perception of the public

interest led it to a decision not to sue.’® Therefore it

“This fiduciary duty is best expressed in Federal Indian Law

(1958 Dept. of Int.) 2:

[NJothing could be more destructive of good will or more

inimical to the advancement of which Indians are known to

be capable than an immoderate accentuation of the idea that

the United States Government is under a special obligation to

all citizens who have Indian blood as a distinct class because

of real or fancied injustices to their ancestors. In this connec-

tion it should be noted that there is a tendency to emphasize

the obligations of the Government of the United States as

trustee of the Indians and their rights. There is a related

tendency in so doing to minimize the fact that it is also trustee

~ the rights of all the citizens and nationals of the United

tates.

‘See Letter from Griffin Bell, Attorney General, to Hon. Cecil

Andrus, Secretary of the Interior, June 30, 1978, S. Rep. No.

96-569, 96th Cong., 2d Sess. (1980) 12, 13, wherein the Attorney

General gave the following reasons for not bringing suit against

private parties on behalf of the Oneidas and other tribes:

After careful thought, I have decided that I will not bring suit

against the landowners in the New York, South Carolina, or

Louisiana claim areas. I have a number of questions about

the legal and factual issues in these suits and question whether

they can be won. enna gree the fact that pik ay tne

are completely innocent any wrongdoing wei eavily

inst suing them. Finally, the Admuinistration’s policy de-

cision to relieve small landowners in Maine from suit through

a legislative settlement recommends the same relief to others

imilarly situated.

—1]5—

is wrong to assume that the Oneidas merely are standing

in the United States’ shoes and asserting the United

States’ public interests. Only a private litigant would

press his claim regardless of its inequitable impact on

thousands of innocent people. A true sovereign has a

duty to represent the public interest and must according-

ly exercise restraint.’®

2. Absent an Express Federal Limitations Period, Federal Courts

Apply Analogous State Statutes of Limitation.

This Court has interpreted the Rules of Decision Act

(RDA)" to require application of state statutory or

common law rules unless otherwise required by the Con-

stitution or federal statutes and treaties. See Erie R.R.

v. Tompkins (1938) 304 U.S. 64, 78.

Courts initially held that where Congress was silent

as to the applicable statute of limitations for a federally

created right, the RDA mandated the borrowing of the

most analogous state statute of limitations. See e.g.,

Chattanooga Foundry & Pipe Works v. City of Atlanta

‘Unlike the United States, Indian tribes are not true sovereigns.

Tribes may not exercise powers of autonomous states which are

“inconsistent with their status.” Oliphant v. Suquamish Indian

Tribe (1978) 435 U.S. 191, 208. Their sovereignty exists only at

the sufferance of Congress and is subject to complete defeasance.

United States v. Wheeler (1978) 435 U.S. 313, 323. The modern

trend has been to apply notions of Indian sovereignty only to the

governing of existing reservation lands and tribal members. Rice

v. Rehner (1983) ——. U.S. —__, 77 L.Ed. 2d 969-70. Here the

Oneidas’ limited sovereignty does not free them from statutes of

limitations since such authority would be inconsistent with their

status. Cf. Escondido Mutual Water Co. v. La Jolla Band of

Mission Indians, supra at 52 U.S.L.W. 4594 n30.

‘The RDA, 28 U.S.C. section 1652, states:

The laws of the several states, except where the Constitution

or treaties of the United States or Acts of Congress otherwise

require or provide, shall be regarded as rules of decision in

civil actions in the courts of the United States, in cases where

they apply.

=_ =

(1906) 204 U.S. 390; Campbell v. Haverhel (1895) 155

U.S. 610; McCluny v. Silliman (1830) 28 U.S. (3 Pet.)

270.

Modernly, Courts have abandoned the position that

the RDA compels the application of state statutes of

limitation. See Special Project, Time Bars In Specialized

Federal Common Law: Federal Rights of Action and

State Statutes of Limitation, 65 Cornell L. Rev. 1011,

1025-55 (1980). Instead, Courts have adopted the posi-

tion that application of state limitations statutes is a

matter of judicial discretion, controlled by. the presump-

tion that where Congress creates a cause of action with-

out specifying a period for enforcement, it intends that

the most analogous state limitations statute be applied.

United Parcel Service, Inc. v. Mitchell (1981) 451 U.s.

56, 60-61; Board of Regents v. Tomanio (1980) 446 U.S.

478, 483-84; Runyon v. McCrary (1976) 427 U.S. 160, 179-

82; International Union, etc. v. Hoosier Cardinal Corp.

(1966) 383 U.S. 696; Holmberg v. Armbrecht (1946) 327

U.S. 392. Courts have carved out two exceptions to this

general rule. First, a Court will not borrow a state limita-

tions statute where the time period is so short that it

emasculates underlying federal policies. See, e.g., Occi-

dental Life Ins. Co. v. Equal Employment Opportunity

Comm’n (1977) 432 U.S. 355, 367. Second, Courts will not

borrow a state statute which discriminates against a

federal right by providing a longer limitations period for

an analogous state right. See, e.g., Van Horn v. Lukhard

(1975 E.D. Va.) 392 F. Supp. 384, 389-91.

Here, the Second Circuit refused to borrow an anal-

ogous state limitations period because it erroneously

believed such a period would be inconsistent with the

federal policies underlying the 1793 Act. (JA 232a).

—j]7—

3. Application of New York Limitations Statutes Would Net

Be Inconsistent With the Alleged Federal Rights Asserted by

the Oneidas.

The Second Circuit stated that borrowing an applic-

able state limitations statute in this case would be incon-

sistent with the policies underlying the 1793 Non-Inter-

course Act because it would allow a violation of the Act

to go unremedied. The court’s rationale, however, proves

too much Every statute of limitations operates to bar a

claim. The Second Circuit’s rationale would prevent the

borrowing of state limitations statutes in any case involv-

ing federal claims."*

In Board of Regents v. Tomanio (1980) 446 U.S. 478,

this Court borrowed both a state statute of limitations

and a state tolling rule in finding that a plaintiff’s 42

U.S.C. section 1983 action was time-barred. In conclud-

ing that the state statute of limitations would not be

inconsistent with the federal policies underlying section

1983, merely because it barred the claim, the Court stated:

“[A] state statute cannot be considered ‘inconsistent’

with federal law merely because the statute causes

the plaintiff to lose the litigation. If success of the

§ 1983 action were the only benchmark, there would

be no reason at all to look to state law, for the appro-

priate rule would then always be the one favoring

the plaintiff, and its source would be essentially

irrelevant.” [citation] Neither of [the] policies

‘To the extent that the District Court believed that the suprem-

acy clause prevented state defenses from barring federal claims

(JA 73a), it ignored the fact that where Congress impliedly in-

corporates local limitations iods into a statute, the defense is

itself part of federal law. See, e.g., Special Project, supra, 65

Cornell L. Rev. at 1029 (The assumption “that a state

[limitations] period may not operate . . . to limit a federal right

. . . Misconstrue(s] the operation of federal common law. Once a

federal court fills a gap in federal law, the gap-filler, whether

judicially-created or absorbed from the state, becomes federal

law.”

= SS

{underlying 1983 — deterrence and compensation]

is significantly affected by this rule of limitations

since plaintiffs can still readily enforce their claims,

thereby recovering compensation and fostering

deterrence, simply by commencing their actions

within three years.

446 U.S. at 488.

Moreover, as the 7omanio Court also pointed out, the

state policies of repose that underlie state limitations are

consistent with the federal policies of repose that are

implicit in every cause of action created by Congress

where it does not expressly establish a limitations period :

“The importance of policies of repose in the federal,

as well as in the state, system is attested to by the

fact that when Congress has provided no statute of

limitations for a substantive claim which is created,

this Court has nonetheless ‘borrowed’ what is con-

sidered to be the most analogous state statute of

limitations to bar tardily commenced proceedings.

[citation] This is obviousiy a judicial recognition of

the fact that Congress, unless it has spoken to the

contrary, did not intend by the mere creation of a

‘cause of action’ or ‘claim for relief’ that any

plaintiff filing a complaint would automatically pre-

vail if only the necessary elements of the federal

substartive claim for relief could be established.

Thus in general, state policies of repose cannot be

said to be disfavored in federal law.” (Jbid.)

Thus, the Second Circuit flatly misinterpreted this

Court’s holding in Occidental Life Ins. Co., supra, 432

U.S. at 367, that state statutes of limitations should not

be borrowed where they are “inconsistent with the under-

lying policies of the federal statute.”

All that the Court did in Occidental was for the first

time give effect to this narrow exception to the general

= =

rule.” The Occidental Court did not consider the state

limitations statute inconsistent with the federal law

merely because it barred the claim. Rather, it refused to

borrow the state statute because as a practical matter the

limitations period was too short to permit the EEOC to

sue at all in many cases. By the time the typical EEOC

charges had completed conciliation, the statute would

have run. Application of such a short limitations period

would have frustrated the underlying Congressional

goal of conciliation and nullified the right Congress gave

the EEOC to bring an action.

Since the Occidental decision, Courts have continued

to give effect to the general rule that state statutes of

limitations will be borrowed where Congress is otherwise

silent. See, e.g., United Parcel Service v. Mitchell, supra,

451 U.S. at 60-61; Board of Regents v. Tomanio, supra,

446 U.S. at 488; Fiesel.v.' Board of Education (1980

E.D.N.Y.) 490 F. Supp. 363, 365; Ashland Oil Co. v.

Union Oil Co. of California (1977 Em. Ct. App.) 567 F.2d

984, 989.

Here the most analogous state limitations periods are

either ten”® or six*' years. There is no reason to believe

that either period was too short to permit the Oneidas

to bring whatever claims they might have under the 1793

Act.”

*As Justice Rehnquist noted in his dissent:

The Court does not now point to any case, not involving the

United States in its sovereign capacity, in which, the federal

statute being silent, the applicable state limitations period was

disregarded in favor of either a judge-made limitations period

or, as here, no limitations period at all. (432 U.S. at 375)

°°N.Y. Civ. Prac. Law, section 212a (ten-year period for com-

mencing action to recover property ).

"1N.Y. Civ. Prac. Law, section 213.1. (six-year period for action

for which no limitation is specifically prescribed by law).

*2In fact the Oneidas were well aware of their potential claims

and protested to the United States at least as early as 1840 and

“innumerable times” between 1909 and 1965. (JA 60a, 213a).

—20—

Thus, as in Tomanio, supra, the state statute of limi-

tations is not inconsistent with any federal policies under-

lying the 1793 Act because the Oneidas could have en-

forced their claims simply by commencing their actions

within the applicable time period. Moreover, the state

policies of repose contained in the New York statute, like

those in Zomanio, also are consistent with the federal

policies of repose necessarily implicit in the 1793 Act.

Congress has evidenced its belief that similar or even

shorter periods of time are ample to permit Indian claims

such as the Oneidas’ to be brought against the United

States. Courts consistently have held that Indian land

claims, when brought against the United States in United

States Claims Court, are subject to the six-year limitation

period in 28 U.S.C. section 2501. See, e.g., Menominee

Tribe of Indians v. United States, supra, 726 F.2d at 720-

22; Fort Mojave Tribe, of Indians (1976) 210 Ct. Cl. 727;

Andrade v. United States, supra, 485 F.2d at 604; Capoe-

man v. United States, supra, 440 F.2d at 1003-08. Courts

also have subjected Indians to the two-year limitation of

the Federal Tort Claims Act, 28 U.S.C. section 2401(b).

See, e.g., Mann v. United States, supra. Both limitations

periods are substantially shorter than the New York

periods in this case; however, courts have not found that

such time bars are inconsistent with any underlying fed-

eral policies toward Indians. These limitations periods

are also evidence that there is no underlying federal

policy of permitting Indian claims to be perpetual; there

is a federal policy of repose with respect to such claims.

As Chief Justice Marshall observed in Adams v. Weeds

(1805) 6 U.S. (2 Cranch) 336, 342, a case without a limita-

tions period “would be utterly repugnant to the genius of

our laws.’

23From ancient times, the salutary rule has been recognized that

there should come a time when mere tempus fugit wipes clean any

—— old debts and obligations. (Cf. Deuteronomy 15:1,

debts made uncollectible after seven years.)

—2)]—

IT.

THE ONEIDAS’ CLAIMS ALSO ARE BARRED BY

LACHES AND OTHER EQUITABLE DOCTRINES.

The Second Circuit did not expressly address the issue

of laches or the other equitable doctrines, apparently be-

lieving them subsumed in its statute of limitations dis-

cussion (JA 232a-33a). The district court: erroneously

concluded that laches would not bar a similar suit brought

by the United States (JA 72a); misread Ewert v. Blue-

jacket (1922) 259 U.S. 129, as holding that laches were

inapplicable to individual Indian suits to rescind trans-

fers of restricted Indian land (Jd. at 73a); and, erro-

neously concluded that because the original transfer vio-

lated 25 U.S.C. Section 177 [sic, the 1793 Non-Intercourse

Act] equitable doctrines such as laches could not validate

the transaction. (/bid.)

Courts, however, have applied equitable ductrines in-

cluding laches against the United States wihien it sues on

behalf of Indians. In Ewert v. Bluejack-* this Court held

merely that laches should not apply uuder the particular

circumstances of that case, not that Indian land claims

could never be barred by lackes. The application of

laches always has the effect of validating a challenged

transaction regardless of whether it originally was void.

Here, where there has been a 175-year delay and preju-

dice to innocent parties, laches should be applied.

A. Contrary to the Lower Courts’ Rulings, Courts Have

Applied Laches and Other Equitable Defenses to Bar

Indian Claims Brought by the United States.

Although dicta in various cases indicate that laches and

other equitable defenses never bar the United States

when it sues on behalf of Indians (see, ¢.g., Board of

Comm’rs v. United States (1939) 308 U.S. 343, 351;

United States v. Ahtanum Irrigation Dist. (1956 9th Cir.)

236 F.2d 231, 334 cert. denied (1956) 352 U.S. 988.), in

fact, courts have applied laches and similar equitable

—22—

doctrines to prevent suit by the United States even when

it sues on behalf of Indian tribes. See, ¢.g., United States

v. Title Ins. and Trust Co. (1924) 265.U.S. 472, 485-87

(United States’ suit on behalf of Mission Indiaus held

barred on the grounds that the court should not overturn

its earlier decision [in Barker v. Harvey (1901) 181 U.S.

482] which had become a rule of property in California) ;

United States v. Ft. Smith € W.R. Co. (1912 8th Cir.) 195

F. 211, 215 (United States held bound by estoppel in suit

to collect railroad right-of-way payments for Creek Na-

tion); Folk v. United States (1916 8th Cir.) 233 F. 177,

191-93 (delay of more than eleven years barred United

States from bringing action on behalf of Creek Nation) ;

United States v. Rose (1937 W.D.N.C.) 20 F. Supp. 350,

353-54 (delay of more than forty-eight years barred

United States from bringing suit on behalf of Eastern

Band of Cherokee Indians); see also United States v.

Eaton Shale Co. (1977 D. Colo.) 433 F. Supp. 1256, 1272

(United States suit to declare certain land patents void

held barred by estoppel and laches where delay was

twenty-one years after patent had issued).

B. The Lower Court’s Reliance on Ewert v. Bluejacket

Is Misplaced.

Contrary to the district court’s opinion (JA 73a),

Ewert v. Bluejacket (1922) 259 U.S. 129, does not hold

that Indian claims can never be barred by laches and

other equitable defenses. It merely follows the general

rule that a defendant who has “unclean bands” may not

invoke equitable defenses.

In Ewert, Bluejacket, a Quapaw Indian had received a

patent for certain Oklahoma land in 1898.** In 1902, Con-

gress passed a statute authorizing heirs of a deceased

Indian to sell inherited lands subject to various restric-

The patent contained a restriction that the property could not

be alienated for twenty-five years.

|

|

|

—23—

tions including the approval of the Secretary of the In-

terior. Bluejacket died in 1907 and the land passed to

hic widow and children. In 1909, they sold the land to

Ewert. In 1916 the widow and heirs sought to have the

deed voided because at the time of the sale, Ewert had

been employed as a special assistant attorney-general

and had assisted the United States in suits relating to

the Quapaw lands. A federal statute prohibited trading

between “persons employed in Indian affairs” and the

Indians.

This Court first held that the federal act disqualified

Ewert from purchasing the land. The Court then stated:

“He [Ewert] still holds the legal title to the land,

and the equitable doctrine of laches, developed and

designed to protect good-faith transactions against

those who have slept upon their rights, with knowl-

edge and ample opportunity to assert them, cannot

properly have application to give vitality to a void

deed and bar the rights of Indian wards in lands

subject to statutory restrictions.” (259 U.S. at 138)

(emphasis added)

The cases cited by the Ewert Court to support the

above proposition did not involve Indians. Instead, all

involved situations where the court had acted to apply

or not to apply laches on equitable grounds.** The doc-

trine of clean hands certainly did not apply to Ewert. He,

after all, had himself participated in the void act.** This

*5Galliher v. Cadwell (1982) 145 U.S. 368, 372 (laches applied

and 14 year old homestead right not permitted to disturb title to

land); Halstead v. Grinnan (1894) 152 U.S. 412, 417 (laches

applied to suit to set aside a 25 year old survey); Northern Pacific

R. Co. v. Boyd (1913) 228 U.S. 482, 500 (laches held not appli-

cable to 10 year delay of nonsecured creditor in attacking a re-

organization plan where corporation and stock holders were not

prejudiced and delay was excusable, 1f not avoidable).

*6Ewert’s activities were not limited to this one instance. See

Kendall v. Ewert (1921) 259 U.S. 139 (decided the same day as

(footnote continued on following page )

—4—

“unclean hands” interpretation is supported by the fact

that in deciding Ewert v. Bluejacket, this Court did not

purport to overrule Feliz v. Patrick (1892) 145 U.S. 317.

C. In Felix v. Patrick This Court Applied Laches to Bar

Indian Claims.

In Feliz v. Patrick, supra, Felix, a Sioux Indian, re-

ceived scrip pursuant to a treaty which entitled her to

480 acres of land.” In 1860, certain unknown persons

fraudulently obtained from Felix the scrip, a quit claim

deed and a power of attorney in blank. In 1861, Patrick

obtained the scrip and used it and the deed and power of

attorney to obtain 120 acres of property.

In 1887 Felix’ heirs sued Patrick to have the deed de-

clared void. The United States Supreme Court affirmed

the lower court’s ruling that the action was barred by

laches. In discussing Petitioner’s argument that they

could not be barred by equitable defenses such as laches

because they had been tribal Indians, the Court stated :

The real question is whether equity demands that

a party who, 28 years ago, was unlawfully deprived

of a certificate of muniment of title of the value of

$150, shall now be put in the possession of property

admitted to be worth over a million. The dispropor-

tion is so great that the conscience is startled, and the

inquiry is at once suggested, whether it can be pos-

sible that the defendant has been guilty of fraud so

gross as to involve consequences so disastrous. In a

court of equity, at least, the punishment should not

Ewert v. Bluejacket) (Court voided Ewert’s attempts to obtain

other Indian land through “straw man” and by obtain-

ing the consent of an Indian claimant was a “habitual drunk-

ard”). inly, the Court was in no mood to listen to any equi-

table defenses Ewert might have tried to assert.

"Similar to the case in Ewert v. Bluejacket, the treaty provided

that no transfer or conveyance of the scrip would be valid. See 36

Stat. 458.

=

be disproportionate to the offense, and the very mag-

nitude of the consequences in this case demands of us

that we should consider carefully the nature of the

wrong done by the defendant in acquiring the title to

these lands. (145 U.S. at 332-33)

The court then considered the equities including that

Patrick (unlike Ewert) had not been a party to the fraud

(Ibid) and that there had been no showing that Felix had

not received full value for the scrip (/bid). The Court,

in afirming the judgment, stated :

It is very evident that Patrick bought these muni-

ments of title as hundreds of others bought them —

in violation of the letter and policy of the law, but

without actually intending to defraud Sophia Felix

or any other person. The law pronounces the trans-

action a fraud upon her but it lacks the element of

wickedness necessary to constitute moral turpitude.

If there had been a deliberate attempt on his part to

beguile or wheedle her out of these lands, we should

have been strongly inclined to afford the plaintiffs

relief at any time during the life of either of the

parties; but as the case stands at present justice

requires only what the law, in the absence of the

statutory limitation would demand — the repayment

of the value of the scrip with legal interest thereon.

(Id. at 334)

The Court also was concerned that a contrary decision

would “result in the unsettlement of larger numbers of

titles upon which owners have rested in assured security

for nearly a generation.” (Jd. at 335.)*

“8Obviously if the Oneida claims are upheld, the results in this

case would be even more disastrous.

=

D. Since Ewert, Courts Have Continued to Apply

Laches to Bar Indian Claims.

After Ewert, courts continued to bar Indian claims on

laches grounds. See, e.g., Lemieux v. United States (1926

8th Cir.) 15 F.2d 518, 523 (court held that the facts of

the case together with the passage of 35 years barred

Lemieux, a Chippewa Indian from maintaining suit to

recover allotment); Barnett v. Riggs National Bank

(1957 D.D.C.) 154 F. Supp. 75, 78 (suit breught to set

aside indian trust barred after delay of 29 years);

Andrade v. United States, supra, 485 F.2d at 665 (Pitt

River tribe suit to overturn Indian Claims Commission

judgment barred by 28 U.S.C. section 2501 and by laches) ;

Armstrong v. Maple Leaf Apartments Lid. (1979 10th

Cir.) 622 F.2d 466, 471-74, cert. denied (1980) 449 U.S.

901 laches applied to bar Indian suit to set aside deed by

applying 1947 statute).

More recently, in Jicarilla Apache Tribe v. Andrus

(1982 10th Cir.) 687 F.2d 1324, an Indian tribe sued the

Secretary of the Interior and oil and gas lessees alleging

that Interior had failed to comply with its regulations

when advertising oil and gas leases on their reservation,

and that it had failed to comply with the National En-

vironmental Policy Act (NEPA). The district court

awarded the tribe damages for violation of Interior’s

regulation; however, it rejected the tribe’s NEPA claims

on a finding of laches and unclean hands on the part of

the tribe. The parties appealed.

On appeal, the Tenth Circuit affirmed that the tribe’s

NEPA claims were barred by laches. The court began

its analysis by noting:

The question whether laches bars an action depends

on the facts and circumstances of each case. The

issue is primarily left to the discretion of the trial

court, but that discretion is, of course, confined by

a inc ent et e

—27—

recognized standards. ... The trial court must find

(a) unreasonable delay in bring’ suit by the party

against whom the defense is asserted and (b) prej-

udice to the party asserting the defense as a result

of this delay.

687 F.2d at 1338.

The Court next found that the tribe had unreasonably

delayed bringing suit by waiting more than three years

to bring the action. (Jbid.)

The Court also rejected the tribe’s claim that the suit

should be found timely filed. The tribe claimed that they

had been ignorant of the NEPA violations and had re-

lied on the Bureau of Indian Affairs and that the United

States had a fiduciary duty to protect their land.

The Court concluded that the tribe’s delay had preju-

diced the lessees and quoted from the lower court’s

decision :

[T]he delay resulted in prejudice to the lessee de-

fendants. Because they had no notice that anything

was amiss with their Jicarilla leases until the insti-

tution of this suit, they have invested well over $12

million in leases in the form of bonus payments,

rentals, administrative overhead costs, plus explora-

tion, drilling and preduction costs. Were they to

lose their leases, much of that investment would be

lost, not to mention the loss of future profits based

on investments already made.

Id. at 1339.”

See also Peshlakai v. Duncan (1979 D.D.C.) 476 F.

Supp. 1247, 1256 (laches barred claim by 72 Navajo In-

dians that a seven-year-old sale of uranium exploration

and mining leases on Navajo lands by the Bureau of

**Here the delay was not 3 years, but 175 years. The potential

prejudice to innocent parties from this suit is not 12 million dollars,

but some huge multiple of that amount.

—28—

Indian Affairs was illegal for failure to prepare an en-

vironmental impact statement in accordance with NE-

PA); Western Shoshone Legal Defense and Education

Ass'n v. United States (1976 Ct. Cl.) 531 F.2d 495, 503

(laches prevented an Indian legal defense and education

association from intervening in claim proceeding before

the Indian Claims Commission for taking of land where

association had waited 39 years before intervening).

The above cases establish that, at the very least, equi-

table defenses such as laches and estoppel should not be

dismissed as a matter of law without analyzing the

facts.” Cf. Covelo Indian Community v. Watt (1982 D.C.

Cir.) 551 F. Supp. 366, 381 (court refused to apply laches

to bar Indian class action seeking damages for federal

government’s failure to abide by federal statute relating

to Indian claims only after examining the equities on

both sides) ; Ute Indian Tribe v. Probst (1970 10th Cir.)

428 F.2d 491, 496-97 (court found laches inapplicable

where delay was only three years and no prejudice was

shown).

E. Application of Laches Is Appropriate in This Case.

It is difficult to imagine a more appropriate case than

this one in which to apply the doctrine of laches. Here

there has been patently unreasonable delay — 175 years

— with no excuse given or even conceivable. The preju-

dice to defendants is obvious. Much of what was then

wild land is now intersected by streets, subdivided into

blocks and lots and occupied by innumerable innocent

purchasers. Land titles believed to be settled for more

than one and one half centuries will be disrupted; inno-

cent home owners and businesses may be forced from

%Cf., United States v. Ruby Co. (1978 9th Cir.) 588 F.2d

697, 701-703, cert. denied (1979) 442 U.S. 917 (court of appeals

concluded that district court erred when it concluded as a matter of

law that estoppel was inapplicable).

—29—

their land. The potentially staggering award of damages

will be borne by innocent taxpayers.

Unlike in Ewert v. Bluejacket, supra, this is not 4

case where the wrongdoer seeks to have his own illegal

contract validated by the passage of time. Here, the

Counties did not even exist at the time the challenged con-

veyances were made. Their hands are clean. They are

entitled to evoke the defense of laches.

Here, as in Feliz v. Patrick, supra, the individuals who

participated in the land transaction died years ago. Just

as modern Indian tribes are not held responsible for

depredations which occurred decades ago, the citizens of

New York State also should not be held responsible for

any alleged wrongs committed by their agents and repre-

sentatives almost 200 years ago.”

811).§. Const. Art. III, sect. 3, cl. 2 — even im cases of treason,

any punishment or forfeiture ends with the death of the traitor.

—30—

Conclusion.

This Court has yet to expressly address whether a bor-

rowed state statute of limitations or laches can bar

ancient indian land and damage claims. Under the Sec-

ond Circuit decision Indian claims can never be barred

no matter how old they are or inequitable it may be to

enforce them. This Court should not sanction such a

pernicious doctrine.

There has been no showing that these Indians could

not have brought their claims decades ago. See, e.g.,

Cherokee Nation v. Southern Kansas Ry. (1890) 135 U.S.

641. Nevertheless the Oneidas slept on their rights until

1970 without apparent excuse. No other citizen or group

in this country would be allowed to assert such stale

claims.

Respectfully submitted,

Paut D. Enosrranp,

Donavp R. Luycoin, Counsel of Record,

Henry E. Heater,

Jenninos, Encstranp & HENRIKSON,

A Professional Law Corporation,

Attorneys for Amici Curiae

City of Escondido and Escondido

Mutual Water Company.

Joun R.- ScHe1,

Kent H. Foster, Counsel of Record,

Guzeny, Waicut, Jacoss & ScHELL,

Attorneys for Amicus Curiae

Vista Irrigation District.