# Appendix — Cayuga Indian Nation of New York v. Pataki (No. 05-982)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0788%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005

## Text

10a

The Court further ruled, on December 23, 1999, that it would
not allow testimony related to equitable issues to be
presented to the jury and that all equitable issues would be
reserved to the Court. Cayuga Indian Nation v. Pataki, 79 F.
Supp. 2d 78, 92 (N.D.N.Y. 1999) (“Cayuga XII’). The Court
decided that, because it had rejected ejectment as an available
remedy, it would allow evidence of current fair market value
as a proper measure of damages. Jd. at 94. As a result of
these rulings, the District Court bifurcated the proceedings
into (1) a jury trial to determine current fair market value and
rental damages and (2) a subsequent hearing on prejudgment
interest and other equitable issues.

A jury trial was held from January 18, 2000 through
February 17, 2000. The parties’ experts presented widely
disparate estimates of the measure of plaintiffs’ damages.
The jury was presented with a Special Verdict Form that
asked for a calculation of current fair market value of the
subject land and for a year-by-year breakdown of rental
damages from 1795 to 1999. The jury was instructed not to
adjust rental damages to current day value, as all adjustments
would be performed later by the Court. On February 17,
2000, the jury returned a verdict finding current fair market
value damages of $35 million and total fair rental value
damages of $3.5 million. In awarding the fair rental value
damages, the jury awarded the same rental value damages for
each year from 1795 to 1999, in the amount of $17,156.86.
The jury gave the State a credit for the payments it had made
to the Cayugas, of about $1.6 million, leaving the total
damages at this stage at approximately $36.9 million.

The hearing on prejudgment interest and other equitable
issues was held from July 17, 2000 through August 18, 2000.
Eight expert witnesses testified, regarding both the historical
context and the assessment of prejudgment interest.

lla

Unsurprisingly, the experts reached substantially divergent
estimates of the prejudgment interest to which the Cayugas
were entitled, ranging from approximately $1.75 billion to
zero (this counterintuitive calculation was based on the
assumption that the jury verdict needed to be “adjusted”
because the jury had expressed its verdict in “constant 2000
dollars’’).3

On October 2, 2001, the District Court issued a
Memorandum-Decision and Order on the interest issue.
Cayuga Indian Nation v. Pataki, 165 F. Supp. 2d 266
(N.D.N.Y. 2001) (“Cayuga XVI’). The District Court
rejected both the “lowball” figure of the State’s expert and
the stratospheric figure of the plaintiffs’ expert and relied on
the estimate of the United States’s expert, who had arrived at
a figure of $529,377,082. Jd. at 364. In doing so, the District
Court took into account a number of equitable
considerations, including “(1) the passage of 204 years; (2)
the failure of the U.S. to intervene or to seek to protect the
Cayuga’s interests prior to 1992; (3) the lack of fraudulent or
calculated purposeful intent on the part of the State to deprive
the Cayuga of fair compensation for the lands ceded by them
in the 1795 and 1807 treaties; and (4) the financial factors
enumerated by [the State’s expert].” /d. at 366. The District
Court noted that these financial factors encompassed a
number of considerations, including the question whether the
Cayugas had access to financial markets or “the ability,
knowledge, or skills to take advantage of such markets,
especially in the early years,” the failure of the verdict to take
into account the Cayugas’ expenses over the past 204 years,

3 The expert actually testified that the Cayugas owed the State
approximately $7.6 million, though the State assured the Court that it
would not attempt to collect from the Cayugas.

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the fact that the unimproved claim area had no rental value
until the twentieth century, and the fact that compounding
interest over 204 years is at best “a theoretical exercise,”
because it ignores the history of banking in this country and
is extremely unlikely to occur in a real-world market. /d. at
364. In light of all these factors, the District Court adjusted
downward the interest estimate by 60 percent, resulting in a
prejudgment interest award of $211,000,326.80 and a total
award of $247,911,999.42. /d. at 366. The District Court
entered judgment that day.

The District Court addressed various post-judgment motions
on March 11, 2002. Cayuga Indian Nation v. Pataki, 188 F.
Supp. 2d 223 (N.D.N.Y. 2002) (“Cayuga XVII"). The Court
first denied the State’s motions for judgment as a matter of
law and for a new trial. /d. at 247-48. The Court granted the
State’s motion “to amend the judgment to provide that it runs
jointly in favor of the U.S., as trustee, and the tribal
plaintiffs,” but denied the State’s motion “to amend the
judgment to run exclusively in favor of the U.S.” /d. at 257.
Finally, the Court denied both parties’ motions for
recalculation of the prejudgment interest and _ plaintiffs’
motion for reconsideration of the Court’s earlier decision
rejecting ejectment as a remedy. /d.

On June 17, 2002, the District Court granted the parties’
motions for permission to appeal and certified for appeal,
pursuant to 28 U.S.C. §1292(b), the issues related to liability
and remedies. We granted the District Court’s certification
of issues for immediate appellate resolution on December 11,
2002.

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DISCUSSION

The Supreme Court’s recent decision in City of Sherrill v.
Oneida Indian Nation, 544 U.S. ----, 125 S. Ct. 1478, 161 L.
Ed. 2d 386 (2005), has dramatically altered the legal
landscape against which we consider plaintiffs’ claims.
Sherrill concerned claims by the Oneida Indian Nation,
another of the Six Iroquois Nations, that its “acquisition of
fee title to discrete parcels of historic reservation land
revived the Oneidas’ ancient sovereignty piecemeal over
each parcel” and that, consequently, the Tribe need not pay
property taxes to the City of Sherrill. /d at 1483. The
Supreme Court rejected this claim, concluding that “the Tribe
cannot unilaterally revive its ancient sovereignty, in whole or
in part, over the parcels at issue.” /d.

We understand Sherrill to hold that equitable doctrines, such
as laches, acquiescence, and impossibility, can, in
appropriate circumstances, be applied to Indian land claims,
even when such a claim is legally viable and within the
statute of limitations. See, e.g., id at 1494 (“[T]he distance
from 1805 to the present day, the Oneidas’ long delay in
seeking equitable relief against New York or its local units,
and developments in the city of Sherrill spanning several
generations, evoke the doctrines of laches, acquiescence, and
impossibility, and render inequitable the piecemeal shift in
governance this suit seeks unilaterally to initiate.”). Sherrill
clarified that the decision does not “disturb” the Supreme
Court’s holding in County of Oneida v. Oneida Indian
Nation, 470 U.S. 226, 229-30, 105 S. Ct. 1245, 84 L. Ed. 2d
169 (1985) (“Oneida II’’), which allowed Indian Tribes to
seek fair rental value damages for violation of their
possessory rights following an ancient dispossession. See
Sherrill, 125 S. Ct. at 1494 (“In sum, the question of
damages for the Tribe’s ancient dispossession is not at issue

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in this case, and we therefore do not disturb our holding in
Oneida IlI.”). Because the Supreme Court in Oneida I/
expressly declined to decide whether laches would apply to
such claims, see Oneida II, 470 U.S. at 244-45, 253 n. 27,
105 S. Ct. 1245, this statement in Sherrill is not dispositive
of whether laches would apply here.

The Court’s characterizations of the Oneidas’ attempt to
regain sovereignty over their land indicate that what
concerned the Court was the disruptive nature of the claim
itself. See id. at 1483 (“{W]e decline to project redress for
the Tribe into the present and future, thereby disrupting the
governance of central New York’s counties and towns.”); id.
at 1491 (“This 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 Tribe] from
gaining the disruptive remedy it now seeks.”); id. at 1491 n.
11 (“[The Oneidas’] claim concerns grave, but ancient,
wrongs, and the relief available must be commensurate with
that historical reality.”). Although we recognize that the
Supreme Court did not identify a formal standard for
assessing when these equitable defenses apply, the broadness
of the Supreme Court’s statements indicates to us that
Sherrill’s holding is not narrowly limited to claims identical
to that brought by the Oneidas, seeking a revival of
sovereignty, but rather, that these equitable defenses apply to
“disruptive” Indian land claims more generally.

In their post-Sherrill briefs, both the Cayugas and the United
States maintain that the Sherrill decision “does not affect the
award of monetary damages,” Cayuga Letter Br. at 1, and
“concerned particular equitable remedies” which are not at
issue here as “the district court confined its judgment to an
award of damages.” United States Letter Br. at 6. Our

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reading of Sherrill suggests that these assertions do not
present an entirely accurate assessment of its effect on the
present case While the equitable remedy sought in Sherrill--
a reinstatement of Tribal sovereignty--is not at issue here,
this case involves comparably disruptive claims, and other,
comparable remedies are in fact at issue.

Despite the eventual award by the District Court of monetary
damages, we emphasize that plaintiffs’ claim is and has
always been one sounding in ejectment; plaintiffs have
asserted a continuing right to immediate possession as the
basis of all of their claims, and have always sought ejectment
of the current landowners as their preferred form of relief.
As noted above, in their complaint in this case the Cayugas
seek “immediate possession” of the land in question and
ejectment of the current residents. Indeed, the District Court
noted early in the litigation that it was “clear” that the
complaint “presents a possessory claim, basically in
ejectment.” Cayuga If, 565 F. Supp. at 1317 (internal
quotation marks omitted). Plaintiffs continue to maintain,
on appeal in this Court, that ejectment is their preferred
remedy. It was not until 1999, nineteen years after the
complaint was filed, and eight years after the District Court’s
decision on liability, that the District Court determined that
the ejectment remedy sought by the Cayugas was, “to put it
mildly, ... not an appropriate remedy in this case.” Cayuga
X, 1999 U.S. Dist. LEXIS 10579, at *97. The District Court
thus effectively “monetized” the cjectment remedy in
concluding that “monetary damages will produce results

4 Plaintiffs took the position in the District Court that mcnetary
damages would not adequately compensate them for two hundrec years
of wrongful occupation. See Cayuga VIII, 1999 U.S. Dist. LEXIS 5228,
3.

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which are as satisfactory to the Cayugas as those which they
could properly derive from ejectment.” /d. at *79.

The nature of the claim as a “possessory claim,” as
characterized by the District Court, underscores our decision
to treat this claim like the tribal sovereignty claims in
Sherrill. Under the Sherrill formulation, this type of
possessory land claim--seeking possession of a large swath
of central New York State and the ejectment of tens of
thousands of landowners--is indisputably disruptive. Indeed,
this disruptiveness is inherent in the claim itself--which asks
this Court to overturn years of settled land ownership--rather
than an element of any particular remedy which would flow
from the possessory land claim. Accordingly, we conclude
that possessory land claims of this type are subject to the
equitable considerations discussed in Sherrill.

This conclusion is reinforced by the fact that the Sherrill
opinion does not limit application of these equitable defenses
to claims seeking equitable relief. We recognize that
ejectment has been characterized as an action at law, as
opposed to an action in equity. See, e.g, New York v. White,
528 F.2d 336, 338 (2d Cir. 1975) (discussing “the legal
remedy of ejectment”); but see Bowen v. Massachusetts, 487
U.S. 879, 893, 108 S. Ct. 2722, 101 L. Ed. 2d 749 (1988)
(stating in dicta that “[o]ur cases have long recognized the
distinction between an action at law for damages--which are
intended to provide a victim with monetary compensation for
an injury to his pevson, property, or reputation--and an
equitable action for specific relief--which may include an
order providing for ... ejectment from land ....”). Plaintiffs
urge us to conclude that, as a legal remedy, ejectment is not
subject to equitable defenses, relying, infer alia, on the
Supreme Court’s statement in Oneida // that “application of
the equitable defense of laches in an action at law would be

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novel indeed.” Oneida IJ, 470 U.S. at 244 n. 16, 105 S. Ct.
1245. In response to this claim, we note Sherrill‘s statement
that “[n]o similar novelty exists when the specific relief [the
Tribe] seeks would project redress ... into the present and
future.” 125 S. Ct. at 1494 n. 14. Whether characterized as
an action at law or in equity, any remedy flowing from this
possessory land claim, which would call into question title to
over 60,000 acres of land in upstate New York, can only be
understood as a remedy that would similarly “project redress
into the present and future.”>

> We note that even though ejectment has traditionally been considered
an action at law, numerous jurisdictions have recognized the applicability
of equitable defenses, including laches, in an action for ejectment based
on a claim of legal title or prior possession, regardless of whether
damages or an order of possession was sought. See, e.g., Pankins v.
Jackson, 891 S.W.2d 845, 848 (Mo. Ct. App. 1995) (noting that
ejectment is claim of legal right of possession, considering whether
laches “defeated” “plaintiff's right of possession,” and concluding it did
not because the delay was not the fault of plaintiff and defendants were
not prejudiced); Jansen v. Clayton, 816 S.W.2d 49, 51-52 (Tenn. Ct.
App. 1991) (upholding dismissal of ejectment action because of laches
and noting that “[aJlthough ejectment is an action at law, equitable
defenses may bar purely legal claims”); McRorie v. Query, 32 N.C. App.
311, 232 S.E.2d 312, 319 (1977) (“[Plaintiffs}] contend that the defense of
laches is not applicable here because this is an action in ejectment. They
cite no authority for this position, and we find none.”); Miller v. Siwicki,
8 Ill. 2d 362, 134 N.E.2d 321, 323 (1956) (holding laches barred
ejectment action brought after 22-year delay and specifying that laches,
“even though an equitable defense, can be interposed in an ejectment
action.”); Olson v. Williams, 185 Mich. 294, 151 N.W. 1043, 1044-45
(1915) (enjoining pending ejectment action because barred by laches);
Loomis v. Rosenthal, 34 Or. 585, 57 P. 55, 61 (1899) (holding that
plaintiffs’ “laches [was] so gross as to preclude their recovery 9f the
land.”).

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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. See, e.g., Oneida II, 470
U.S. at 240-44, 105 S. Ct. 1245 (holding that the general law
favoring the borrowing of state law limitations-periods does
not apply to federal Indian land claims); Mohegan Tribe v.
Connecticut, 638 F.2d 612, 614-15 & n. 3 (2d Cir. 1980)
(holding that adverse possession does nc: run against Indian
land). This proposition was well stated by the District Court:

As the parties are well aware, the Cayugas are
seeking to enforce a “federal common law” right of
action for violation of their possessory property
rights, as well as seeking to vindicate their rights
under the Nonintercourse Act. Unfortunately, that
Act is silent as to remedies, thus leaving courts to
resort to the common law as a means of “assisting ...
in formulating a statutory [Nonintercourse Act]
damage remedy.” Therefore, in molding a remedy in
the present case and in structuring a manageable trial,
in the court’s opinion it may well be appropriate, and
indeed necessary, to fashion a federal common law
remedy, which although having some resemblance to
remedies available for common law torts such as
trespass, is a remedy uniquely tailored to fit the needs
of this unparalleled land claim litigation. As the
discussion below demonstrates, however, and has
been evident for some time as the issue of remedies
has come to dominate this litigation, common law
principles, whether tort-based or not, are not readily
transferrable to this action.

Cayuga XI, 79 F. Supp. 2d at 70-71 (internal citations,
quotations, and emphasis omitted). In light of the unusual

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considerations at play in this area of the law, and our
agreement that ordinary common law principles are indeed
“not readily transferrable to this action,” we see no reason
why the equitable principles identified by the Supreme Court
in Sherrill should not apply to this case, whether or not it
could be technically classified as an action at law.

Thus, whatever the state of the law in this area before
Sherrill, see Oneida II, 470 U.S. at 253 n. 27, 105 S. Ct. 1245
(reserving “the question whether equitable considerations
should limit the relief available” in these cases); id. at 244-
45, 105 S. Ct. 1245 (deciding not to reach the question of
laches because defendants had waived it), we conclude, for
the above-stated reasons, that, after Sherrill, equitable
defenses apply to possessory land claims of this type.

Our reading is not in conflict with the Supreme Court’s
decision in Oneida Indian Nation v. County of Oneida. 414
U.S. 661, 94 S. Ct. 772, 39 L. Ed. 2d 73 (1974) (“Oneida I’),
where the Court specifically found federal jurisdiction to hear
such possessory claims, including those in ejectment. /d. at
666, 94 S. Ct. 772. The Court there noted that “the
complaint in this case asserts a present right to possession
under federal law. The claim may fail at a later stage for a
variety of reasons; but for jurisdictional purposes, this is not
a case where the underlying right or obligation arises only
under state law and federal law is merely alleged as a barrier
to its effectuation.” /d. at 675, 94 S. Ct. 772. The holding of
Sherrill thus addresses the question reserved in Oneida 1] and
follows from Oneida Is holding by providing that these
possessory claims are subject to equitable defenses.

Inasmuch as the instant claim, a possessory land claim, is
subject to the doctrine of laches, we conclude that the present
case must be dismissed because the same considerations that

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doomed the Oneidas’ claim in Sherrill apply with equal force
here. These considerations include the following:
“(g]jenerations have passed during which non-Indians have
owned and developed the area that once composed the
Tribe’s historic reservation,” Sherrill, 125 S. Ct. at 1483; “at
least since the middle years of the 19th century, most of the
[Tribe] have resided elsewhere,” id. the longstanding,
distinctly non-Indian character of the area and _ its
inhabitants,” id.; “the distance from 1805 to the present day,”
id. at 1494; “the [Tribe’s] long delay in seeking equitable
relief against New York or its local units,” id; and
“developments in [the area] spanning several generations.” -
Id.; see also id. at 1492-93 (“[T]his Court has recognized the
impracticability of returning to Indian control land that
generations earlier passed into numerous private hands.’’)
(citing Yankton Sioux Tribe v. United States, 272 U.S. 351,
357, 47 S. Ct. 142, 71 L. Ed. 294 (1926) (“It is impossible ...
to rescind the cession and restore the Indians to their former
rights because the lands have been opened to settlement and
large portions of them are now in the possession of
innumerable innocent purchasers ....”)). We thus hold that
the doctrine of laches bars the possessory land claim
presented by the Cayugas here.© The District Court, after
serious consideration of this exact question, explicitly agreed
with this assessment. Cayuga X, 1999 U.S. Dist. LEXIS

6 Sherrill effectively overruled our Court’s holding in Oneida Indian
Nation v. New York, 691 F.2d 1070, 1084 (2d Cir. 1982), that laches and
other time-bar defenses should be unavailable and that “suits by tribes
should be held timely if such suits would have been timely if brought by
the United States.” We note that in a subsequent Oneida case, Judge
Newman, while writing for the Court, stated that “[t}he writer accepts the
prior panel's rejection of a laches defense as the law of the case, though
would find the issue to be a substantial one if it were open.” Oneida
Indian Nation v. New York, 860 F.2d 1145, 1149 n. 1 (2d Cir. 1988)

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10579, at *86 (“Thus, even though some delay on the part of
the Cayugas is explainable, in the context of determining
whether ejectment is an appropriate remedy, ... the delay
factor tips decidedly in favor of the defendants.”).

To summarize: the import of Sherrill is that “disruptive,”
forward-looking claims, a category exemplified by
possessory land claims, are subject to equitable defenses,
including laches. Insofar as the Cayugas’ claim in the instant
case is unquestionably a possessory land claim, it is subject
to laches. The District Court found that laches barred the
possessory land claim, and the considerations identified by
the Supreme Court in Sherrill mandate that we affirm the
District Court’s finding that the possessory land claim is
barred by laches. The fact that, nineteen years into the case,
at the damages stage, the District Court substituted a
monetary remedy for plaintiffs’ preferred remedy of
ejectment’ cannot salvage the claim, which was subject to
dismissal ab initio. To frame this point a different way: if the
Cayugas filed this complaint today, exactly as worded, a
District Court would be required to find the claim subject to
the defense of laches under Sherrill and could dismiss on that
basis.

Although we conclude that plaintiffs’ ejectment claim is
barred by laches, we must also consider whether their other
claims, especially their request for trespass damages in the

7? After finding for plaintiffs on liability and ruling out ejectment as a
remedy, the District Court seems to have folded all of the plaintiffs’
requests for relief into its award of damages, without separate
consideration of any of the requests for relief. See Cayuga X/, 79 F.
Supp. 2d at 70. Our conclusion that the award of damages stems entirely
from the ejectment claim follows from the District Court’s approach.

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amount of the fair rental value of the land for the entire
period of plaintiffs’ dispossession, are likewise subject to
dismissal. In assessing these claims, we must recognize that
the trespass claim, like all of plaintiffs’ claims in this action,
is predicated entirely upon plaintifts’ possessory land claim,
for the simple reason that there can be no trespass unless the
Cayugas possessed the land in question. See, e.g., West ]4th
Street Commercial Corp. v. 5 West 14th Owners Corp., 815
F.2d 188, 195 (2d Cir. 1987) (holding that a trespass cause of
action must allege possession). Inasmuch as piaintiffs’
trespass claim is based on a violation of their constructive
possession, it follows that plaintiffs’ inability to secure relief
on their ejectment claim alleging constructive possession
forecloses plaintiffs’ trespass claim. In other words, because
plaintiffs are barred by laches from obtaining an order
conferring possession in ejectment, no basis remains for
finding such constructive possession or immediate right of
possession as could support the damages claimed. Because
the trespass claim, like plaintiffs’ other requests for relief,
depends on the possessory land claim, a claim we have found
subject to laches, we dismiss plaintiffs’ trespass claim, and
plaintiffs’ other remaining claims, along with the plaintiffs’
action in ejectment.

We recognize that the United States has traditionally not
been subject to the defense of laches. See United States v.
Summerlin, 310 U.S. 414, 416, 60 S. Ct. 1019, 84 L. Ed.
1283 (1940). However, this does not scem to be a per se
rule. See, e.g., Clearfield Trust Co. v. United States, 318
U.S. 363, 369, 63 S. Ct. 573, 87 L. Ed. 838 (1943) (holding
that laches is a defense to the United States in its capacity as
holder of commercial paper). Judge Posner has aptly noted
that “the availability of laches in at least some government
suits is supported by Supreme Court decisions, notably

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Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 373, 97 S.
Ct. 2447, 53 L. Ed. 2d 402 (1977); Heckler v. Community
Health Services of Crawford County, Inc., 467 U.S. 51, 60-
61, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984); and Jrwin vy.
Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.
Ct. 453, 112 L. Ed. 2d 435 (1990), that refuse to shut the
door completely to the invocation of laches or estoppel
(similar doctrines) in government suits.” United States vy.
Administrative Enterprises, Inc., 46 F.3d 670, 672-73 (7th
Cir. 1995). Indeed, the Seventh Circuit has made clear that,
in appropriate circumstances, laches can apply to suits by the
federal government. See NLRB v. P*I*E Nationwide, Inc.,
894 F.2d 887, 894 (7th Cir. 1990) (“Following dictum in
Occidental Life and the general principle noted earlier that
government suits in equity are subject to the principles of
equity, laches is generally and we think correctly assumed to
be applicable to suits by government agencies as well as by
private parties.”’) (internal citations omitted).

Notwithstanding our conclusion that the United States as
plaintiff-intervenor is subject to laches in this case, we do not
purport to set forth broad guidelines for when the doctrine
might apply. Rather, we follow the Seventh Circuit, which,
after canvassing the case law, noted in Administrative
Enterprises that there are three main possibilities for when
laches might apply against the United States: first, “that only
the most egregious instances of laches can be used to abate a
government suit”; second, “to confine the doctrine to suits
against the government in which ... there is no statute of
limitations”; and third, “to draw a line between government
suits in which the government is seeking to enforce either on
its own behalf or that of private parties what are in the nature
of private rights, and government suits to enforce sovereign
rights, and to allow laches as a defense in the former class of

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cases but not the latter.” Administrative Enterprises, 46 F.3d
at 673 (internal citations omitted). We need not decide
which of these three possibilities might govern because this
case falls within ali three. First, given the relative youth of
this country, a suit based on events that occurred two
hundred years ago is about as egregious an instance of laches
on the part of the United States as can be imagined; second,
though there is now a statute of limitations, see 28 U.S.C.
§2415(a), there was none until 1966--i.e., until one hundred
and fifty years after the cause of action accrued; and third,
the United States intervened in this case to vindicate the
interest of the Tribe, with whom it has a trust relationship.’
Accordingly, we conclude that whatever the precise contours
of the exception to the rule against subjecting the United
States to a laches defense, this case falls within the heartland
of the exception.

We acknowledge that we stated in Oneida Indian Nation v.
New York, 691 F.2d 1070 (2d Cir. 1982), that “[i]t is clearly
established that a suit by the United States as trustee on
behalf of an Indian tribe is not subject to state delay-based
defenses.” Jd. at 1084. That opinion, however, left open the
possibility of asserting delay-based defenses founded on
federal law in these circumstances. See id. (stating that
“{t]here remains the question whether a delay-based defense
founded on federal law may be asserted” and concluding that
because the suit was within the statute of limitations of 28

8 Our holding here thus does not disturb our statement in United States
v. Angell, 292 F.3d 333, 338 (2d Cir. 2002), that “laches is not available
against the federal government when it undertakes to enforce a public
right or protect the public interest,” inasmuch as this case does not
involve the enforcement of a public right or the protection of the public
interest.

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U.S.C. §2415, the suit was timely in any case). In light of
Sherrill, which, as noted above, we read to have substantially
altered the legal landscape in this area, we conclude that the
federal law of laches can apply against the United States in
these particular circumstances.

The Cayugas and the United States highlight the District
Court’s findings, in deciding whether to award prejudgment
interest, that the Cayugas were not “responsible for any delay
in bringing this action” and that the “delay was not
unreasonable, insofar as the actions of the Cayuga are
concerned.” Cayuga Letter Br. at 3, United States Letter Br.
at 3. We acknowledge these findings, but do not believe they
are dispositive for our consideration of the laches question.
The equitable considerations relevant to an assessment of a
possessory land claim--which is precisely what this case was
from the outset--differ dramatically from the equitable
considerations in a claim for prejudgment interest, which is
what the case had become at the time the District Court made
these findings. The District Court itself, as discussed adove,
found that laches barred the Cayugas’ preferred remedy of
ejectment. Indeed, the District Court noted that “[rjegardless
of when the Cayugas should have or could have commenced
this lawsuit, the court cannot overlook the prejudicial
consequences which the defendants would sustain if the court
were to order ejectment,” and found that the “prejudice
factor” was “a factor which is far too important to ignore.”
Cayuga X, 1999 U.S. Dist. LEXIS 10579, at *85-86. In light
of these findings, and the Supreme Court’s ruling in Sherrill,
we see no need to remand to the District Court for a
determination of the laches question.

Our decision to reverse the judgment of the District Court
and enter judgment for defendants should in no way be
interpreted as a reflectio.. on the District Court’s efforts and

26a

rulings in this case. We recognize and applaud the
thoughtful and painstaking efforts, over many years, of Judge
Neil P. McCurn, who presided over this and related land
claims in upstate New York with fairness and due regard to
the rights and interests of all parties as well as with a keen
appreciation of the complexities of the subject matter and of
the relevant law. Our decision is based on a subsequent
ruling by the Supreme Court, which could not be anticipated
by Judge McCurn in his handling of this case over more than
twenty years.

The judgment of the District Court is REVERSED and
judgment is entered for defendants.

HALL, District Judge, dissenting in part and concurring in
part in the judgment.

While City of Sherrill v. Oneida Indian Nation, 544 U.S. ----,
125 S. Ct. 1478, 161 L. Ed. 2d 386 (2005), has an impact on
this case, it does not compel the conclusion that the plaintiffs
are without any remedy for what the District Court found to
be the illegal transfer of their land. My understanding of City
of Sherrill is that it supports the majority’s conclusion that
the plaintiffs cannot obtain ejectment of those currently in
possession of the land which was, over 200 years ago, the
Cayuga Nation’s Original Reservation. However, based on
the nature of the claims long asserted in this case, the
elements of the defense of laches, and the language and
precedent relied on in City of Sherrill, 1 cannot join the
majority in its conclusion that laches bars all of the plaintiffs’
remedies, including those for money damages. Therefore, |
respectfully dissent in part and concur in part in the
judgment.

27a

I. Procedural History

The majority sets forth an excellent summary of the
extensive background to this appeal. There are, however, a
few procedural aspects that bear noting.

The history of this case makes clear that the Cayuga
plaintiffs! have, from its filing, asserted multiple causes of
action and sought multiple remedies. The complaint states a
claim, inter alia, for trespass damages. The Cayuga plaintiffs
allege that “‘[a]ll of the defendants are in trespass” and that
“(t]he defendants are keeping plaintiffs out of possession of
their land in violation of the common law and 25 U.S.C.
§177 (The Non-Intercourse Act).” Cayuga Indian Nation
Compl. at 450. The Cayuga plaintiffs sought several forms
of relief, including declaratory relief, ejectment, an
accounting, and trespass damages for the fair rental value of
the land. it bears noting that the statute of limitations
established by Congress did not expire until approximately
three years following the date this action was filed 28
U.S.C. §2415(a) (“for those claims that are on either of the
two lists published pursuant to the Indian Claims Limitations
Act of 1982, any right of action shall be barred unless the
complaint is filed within (1) one year after the Secretary of
the Interior has published in the Federal Register a notice
rejecting such claim ...”); 48 Fed. Reg. 13920 (Mar. 31,
1983) (listing Cayuga’s “Nonintercourse Act Land Claim”);
see also County of Oneida v. Oneida Indian Nation of N.Y.,
470 U.S. 226, 243, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985)
(“Oneida IT’) (“So long as a listed claim is neither acted
upon nor formally rejected by the Secretary, it remains live.”)

1 “Cayuga plaintiffs” refers collectively to the Cayuga Indian National
and the Seneca-Cayuga Tribe.

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While the majority may be correct that “ejectment is [the
plaintiffs’] preferred remedy,” Maj. Op. at 274, there is
certainly nothing in the record to suggest that the Cayuga
plaintiffs relinquished their claims for money damages. See,
e.g., Cayuga Indian Nation y. Cuomo, 565 F. Supp. 1297,
1305- 06 (N.D.N.Y. 1983) (“Cayuga I’) (“With respect to
the common law bases for their claim, references are made in
plaintiffs’ papers to ‘ejectment’, ‘trespass’, ‘waste’ and
‘conversion’, either as analogous forms of action or as
indices of damages.”’). Indeed, federal common law provides
the Cayuga plaintiffs with a variety of remedial theories.
“The Supreme Court has recognized a variety of federal

trespass, including actions for ejectment, accounting for
profits, and damages.” U.S. v. Pend Oreille Pub. Util. Dist.
No. 1, 28 F.3d 1544, 1549 n. 8 (9th Cir. 1994), cert. denied,
514 U.S. 1015, 115 S. Ct. 1356, 131 L. Ed. 2d 214 (1995).
The District Court found that, “the plaintiffs are not
specifying a single source for their substantive possessory
right, or a single source for their right of action” and read the
complaint and the plaintiffs’ papers to state a claim “derived
from the Nonintercourse Act itself or from federal common
law.” Cayuga I, 565 F. Supp. at 1306. Such a claim has
been recognized to include as a remedy a monetary award for
damages. Oneida II, 470 U.S. at 235-40, 105 S. Ct. 1245.
Thus, the plaintiffs here have sought money damages from
the filing of this case.

The District Court addressed the application of equitable
defenses early in the case, when it considered the non-state
defendants’ argument “that the equitable remedies of
rescission and restitution are no longer available where the

29a

use and the value of the land has changed drastically, and
where it is held by innocent purchasers.”? Cayuga I, 565 F.
Supp. at 1310. The court concluded on the basis of Second
Circuit precedent that, while laches did not bar the Cayuga
plaintiffs’ claims, it may later become relevant with respect
to the relief sought. /d.

After the District Court held that the 1795 and 1807 land
conveyances to New York State were invalid, Cayuga Indian
Nation v. Cuomo, 730 F. Supp. 485, 493 (N.D.N.Y. 1990)
(“Cayuga III’), the District Court again faced the question of
laches. Cayuga Indian Nation v. Cuomo, 771 F. Supp. 19, 20
(N.D.N.Y. 1991) (“Cayuga V’). However, the District Court
again relied on pre-City of Sherrill precedent to find that the
action had been filed timely and that laches did not apply. /d.
at 20-24 (citing Oneida Indian Nation of New York v. Oneida
County, 719 F.2d 525, 538 (2d Cir. 1983); Oneida Indian
Nation of New York v. New York, 691 F.2d 1070, 1084 (2d
Cir. 1982)).

On November 5, 1992, the United States filed a motion to
intervene. It did so both on its own behalf and as trustee to
the tribe. In its Answer to the United States’ Complaint in
Intervention, which, inter alia, sought trespass damages, the
State alleged that the common law defense of laches barred
the claims of and relief sought by the United States. The
District Court never reached the question of whether laches
could be asserted against the United States in this case

2 Notably, at that time, the defendants did not raise the defense of
laches, an equitable defense, to any of the plaintiffs’ non-equitable
claims. Cayuga /, 565 F. Supp. at 1310 (discussing application of delay-
based defenses to availability of equitable remedies of rescission and
restitution).

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because the parties stipulated that the court’s previous
rejection of the defense as to the other plaintiffs would apply
with equal force as to the United States.

Following the District Court’s grant of partial summary
judgment on the question of liability, the defendants then
moved to preclude ejectment as a remedy. The court found
“that from the outset ejectment is one of several remedies
which the Cayugas have been seeking, and their claims also
have been framed in terms of ejectment.” Cayuga Indian
Nation v. Cuomo, 1999 U.S. Dist. LEXIS 10579, at *58
(N.D.N.Y. July 1, 1999) (“Cayuga X”’). Following the
reasoning in United States v. Imperial Irrigation District, 799
F. Supp. 1052 (S.D. Cal. 1992), the District Court treated the
ejectment remedy as a request for a permanent injunction.
The court considered the factors iterated by the Restatement
(Second) of Torts for application to requests for injunctions
against trespass. Cayuga X, 1999 U.S. Dist. LEXIS 10579,
at *62- 63. The District Court did so because, as noted in
Imperial Irrigation, “an equitable analysis is appropriate
before issuing any final orders other than for monetary
damages.” 799 F. Supp. at 1068 (quoted in Cayuga X, 1999
U.S. Dist. LEXIS 10579, at *62) (emphasis added).

After considering the interest to be protected, the relative
adequacy of various remedies, delay, misconduct, and
relative hardship, the interests of third parties, and the
practicability of an injunction, see Restatement (Second) of
Torts §936(1)(a)-(g), the District Court granted the
defendants’ motion to preclude ejectment as a remedy.?

3 Thus, contrary to the majority’s assertion, the District Court did not
find “that laches barred the possessory claim,” Maj. Op. at 277, but rather

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Cayuga X, 1999 U.S. Dist. LEXIS 10579, at *99. The court
then dismissed those defendants against whom the plaintiffs
had sought ejectment and no other remedies. /d Those
defendants against whom the plaintiffs had sought other
remedies remained in the case. While the majority states that
the District Court “monetized” the remedy, Maj. Op. at 275,
as I understand the term, it is only partially correct.4 Instead,
it rejected an ejectment remedy based on _ equitable
considerations, including the remedial adequacy of money
damages, and allowed the plaintiffs to pursue other
remedies.°

II. Application of Laches to the Plaintiffs’ Claims for
Damages

The issue before this couri—‘the application of a
nonstatutory time limitation in an action for damages”--has
not been addressed by the Supreme Court. See City of
Sherrill, 125 S.Ct at 1494 n. 14 (citing Oneida II, 470 U.S. at
244, 105 S. Ct. 1245.6 To extend this defense to the Tribe’s

concluded that equitable considerations prevented the award of the
equitable remedy of possession.

4 Fair rental value damages, as a monetary remedy, had been sought
since the filing of the case.

5 The power of a court sitting in equity to award monetary relief as, or
in place of, an equitable remedy has long been recognized. Cathcart v.
Robinson, 30 U.S. 264, 278, 5 Pet. 264, 8 L.Ed. 120 (1831) (Marshall,
C.J.); see also Mora v. United States, 955 F.2d 156, 159-160 (2d Cir.
1992).

6 Although the Oneida II majority did not reach the question, it did
observe that “it is far from clear that this [laches] defense is available in
suits such as this one [for money damages], ....” Oneida I/, 470 US. at
244, 105 S.Ct. 1245. The Court further noted that “application of the
equitable defense of laches in an action at law would be novel indeed.”
Id. at 244 n. 16, 105 S.Ct. 1245.

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claim for money damages would be “novel indeed.” Oneida
Il, 470 U.S. at 244 n. 16, 105 S. Ct. 1245. The majority
argues that, “[o]ne 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.””’ Maj. Op. at 276. Such
complexity is best addressed by relying on relevant precedent
and established principles. Congressional action and
centuries of precedent with regard to both Indian land claims
and foundational distinctions between rights and remedies,
coercive relief and damages, and legal claims and equitable
relief, should guide the attempt to resolve this historic
dispute.

The plaintiffs here seek relief under two theories, ejectment
and trespass. As noted, all claims were brought prior to
expiration of the relevant statute of limitations. Historically,
both ejectment and trespass are actions at law. Dan B.
Dobbs, Law of Remedies §§5.1, 5.10(1) (2d ed. 1993).
Unless a party’s delay amounts to either an estoppel or
waiver, it does not bar a party’s access to remedies at law.
Id. at §2.4(4) (“When laches does not amount to estoppel or
waiver, it does not ordinarily bar legal claims, only equitable
remedies.”). Furthermore, laches is not a complete deferse
to a claim. “Because laches is based on prejudice to the

7 The cases cited by the majority in support of this point, to the extent
that they suggest that Indian land claims are to be treated different from
non-Indian claims, strongly suggest that Indian claims are entitled to
more protection, rather than less, as a result of strong federal policy
protecting tribal title from application of state law. See Oneida II, 470
U.S. at 240-44, 105 S.Ct. 1245; Mohegan Tribe v. Connecticut, 638 F.2d
612, 614-15 (2d Cir. 1980).

33a

defendant, the bar it raises should be no broader than the
prejudice shown.” Jd.

A. Ejectment and Laches

An action for ejectment generally seeks two remedies,
restoration of possession and damages equivalent to the fair
market rent for the period the plaintiff was wrongfully out of
possession, sometimes referred to as mesne profits. Id. at
§5.10(1). Reinstatement of one’s possessory interest in land
is typically the most salient of the two remedies. It is hardly
surprising, therefore, that some jurisdictions have chosen to
make the doctrine of laches available to defendants in
ejectment actions where a coercive remedy is sought. See
Maj. Op. at 275-76 n. 5. New York courts have held, for
example, that “[a]n equitable defense is good in ejectment.”
Dixey v. Dixey, 196 A.D. 352, 354, 187 N.Y.S. 879 (2d Dep’t
1921) (citing Phillips v. Gorham, 17 N.Y. 270 (1858)).

The defense of laches pertains only to the remedy sought, not
the cause of action itself. The elements of laches are both
delay and prejudice. City of Sherrill, 125 S. Ct. at 1491
(“laches, a doctrine focused on one side’s inaction and the
other’s legitimate reliance, may bar long-dormant ciaims for
equitable relief’); Kansas v. Colorado, 514 U.S. 673, 687,
115 S. Ct. 1733, 131 L. Ed. 2d 759 (1995) (“The defense of
laches requires proof of (1) lack of diligence by the party
against whom the defense is asserted, and (2) prejudice to the
party asserting the defense.” (internal quotations omitted));
Penn Mut. Life Ins. Co. v. City of Austin, 168 U.S. 685. 698,
18 S. Ct. 223, 42 L. Ed. 626 (1898) (“The reason upon which
the rule [of laches] is based is not alone the lapse of time
during which the negiect to enforce the right has existed, but
the changes of condition which may have arisen during the
period in which there has been neglect.”); see also Fred F.

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Lawrence, A Treatise on the Substantive Law of Equity
Jurisprudence, §1037 (1929) (“Being, like a!l other equitable
relief, purely protective, it is not to be inferred from delay
alone, but rather from the consequences which may under the
circumstances flow from it.”). The nature of the remedy
sought will necessarily change the court’s analysis of the
effect of delay. ‘“[E]quity may, in the exercise of its own
inherent powers, refuse relief where it is sought after undue
and unexplained delay, and when injustice would be done, in
the particular case, by granting the relief asked.” Abraham vy.
Ordway, 158 U.S. 416, 420, 15 S. Ct. 894, 39 L. Ed. 1036
(1895) (emphasis added). “[L]aches is not, like limitation, a
mere matter of time; but principally a question of the inequity
of permitting the claim to be enforced.” Galliher v. Cadwell,
145 U.S. 368, 373, 12 S. Ct. 873, 36 L. Ed. 738 (1892).
Thus, the application of the equitable defense of laches is, by
its nature and function, confined by the particular prejudice
caused by the remedy.

However, where a plaintiff seeks ejectment damages, rather
than restoration of a possession interest, application of the
doctrine of laches to such a money damage claim is rarely if
ever justified. Even where reinstatement of possession is
disruptive, attendant damage claims are not similarly
disruptive. It is axiomatic that a menu of remedies, some
mutually exclusive, may be associated with the same right
and that, in different factual situations, different remedies
will be appropriate. Here, the plaintiffs’ claims for
possession and for fair rental value damages should be
treated separately. While the element of delay found in
connection with application of the defense to the possession
remedy is equally present with regard to the money damages
remedy, there is no corresponding prejudice to the defendant
New York State (“State”) in connection with an award of

35a

money damages. The bar of laches does not rise high enough
to bar the money judgment here. See Dobbs, supra, §2.4(4).

Determining that the coercive remedy of restoration of
possession is barred by laches requires a fact-intensive
inquiry regarding the disruptiveness of that remedy. In City
of Sherrill, for example, the Court found that the defendants
in that case had “justifiable expectations” which were
“grounded in two centuries of New York’s exercise of
regulatory jurisdiction.” 125 S. Ct. at 1490-91. The
Supreme Court held that the remedy sought by the Oneida
Indian Nation--the reassertion of sovereignty resulting in “a
checkerboard of state and tribal jurisdiction”--was disruptive
to justifiable expectations regarding the state, and therefore
local, regulatory authority over territory. /d at 1482. The
City of Sherrill Court concluded, in the face of two hundred
years of sovereign control by the State of New York and its
municipalities, that the reassertion of tribal sovereignty
would be “disruptive.” /d. at 1491.

City of Sherrill would thus support a finding that restoration
of possession, following two hundred years of unlawful
possession, is a sufficiently disruptive remedy that it may
satisfy the prejudice element of the laches defense.
However, the proof involved with the remedy of damages
will be radically different than that involved with a claim for
an injunction, specific performance, or equitable re-
possession in real property. Indeed, there does not appear to
be anything in the money damages award in this case that
would be disruptive.

5 6

The majority concludes that the plaintiffs’ “possessory land

claims” are barred in their entirety by City of Sherrill and
reasons that the plaintiffs, having been denied the right to
possession, cannot prove the elements of their claims for

36a

money damages. However, current possession is not an
element of a legal claim for ejectment. A legal claim for
ejectment consists of the following elements: “[p]laintiffs
are out of possession; the defendants are in possession,
allegedly wrongfully; and the plaintiffs claim damages
because of the allegedly wrongful possession.” Oneida
Indian Nation of N.Y. v. County of Oneida, N.Y., 414 US.
661, 683, 94 S. Ct. 772, 39 L. Ed. 2d 73 (1974) (“Oneida I’)
(citing Taylor v. Anderson, 234 U.S. 74, 34 S. Ct. 724, 58 L.
Ed. 1218 (1914)). Making out this claim cannot depend on
the plaintiffs’ ability to obtain the right to furure possession,
whether legal or constructive, as such requirement would
make the claim circular. Instead, the only necessary element
in this regard is that the plaintiffs are wrongfully out of
possession, which element the District Court here found.
Cayuga III, 730 F. Supp. at 493. The inability to obtain the
coercive remedy of possession, as a result of the court’s
exercise of discretion in the same case, should not bar an
ejectment claim for money damages.

B. Trespass

While the majority does not appear to apply the laches
defense to a claim for trespass damages, it nevertheless
dismisses the plaintiffs’ trespass claim on the basis that it is
derivative of the ejectment claim and requires proof of
possession. The fact that “possession” is an element of a
claim for trespass does not require dismissal of the action,
however. The trespass claim is not predicated upon the
plaintiffs’ possessory claim, nor is there any relationship
between the two claims that necessitates dismissal of the
trespass claim. Indeed, the plaintiffs may be able to prove

37a

the right to possession® while being unable to obtain a
coercive remedy that would restore them in the future to
physical possession.

The majority’s contention that the plaintiffs cannot make out
their claim for damages because their claim for coercive
relief fails treats the special defense of laches as if it were in
the nature of a statute of repose. However, nowhere in City
of Sherrill is the “right” of possession addressed; the Court
writes always about the “remedy” of possession. See, e.g.,
City of Sherrill, 125 S. Ct. at 1489. Courts have discretion to
apply laches to deny a party some or all remedies. See supra
at 283-84. However, the defense of laches does not apply to
prevent a party from establishing an element of its cause of
action. See Felix v. Patrick, 145 U.S. 317, 325, 12 S. Ct.
862, 36 L. Ed. 719 (1892) (discussed in City of Sherrill, 125
S. Ct. at 1491-92). Perhaps if laches were a doctrine akin to
a statute of repose, such that, first, it applied to a legal claim
and, second, it vitiated the claim, the majority’s analysis that
claims involving the right to possess are barred by laches
because laches bars the remedy of possession might be
persuasive. See generally P. Stolz Family P’ship v. Daum,
355 F.3d 92, 102 (2d Cir. 2004) (discussing difference
between statutes of repose, which define and limit rights, and
statutes of limitations, which “bear on available remedies”).
Nothing in the case law concerning laches, however, supports
such an analysis.

8 There are issues on appeal concerning the rulings by the District
Court that the plaintiffs have a right to possession because the land
transfers were illegal.

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C. United States as Plaintiff

The United States is a plaintiff in this case. “The principle
that the United States are not ... barred by any laches of their
officers, however gross, in a suit brought by them as a
sovereign Government to enforce a public right, or to assert a
public interest, is established past all controversy or doubt.”
United States v. Beebe, 127 U.S. 338, 344, 8 S. Ct. 1083, 32
L. Ed. 121 (1888) (quoted in Alaska Dep't of Envil.
Conservation v. EPA., 540 U.S. 461, 514, 124 S. Ct. 983, 157
L. Ed. 2d 967 (2004) (Kennedy, J., dissenting)); see also
United States v. Summerlin, 310 U.S. 414, 416, 60 S. Ct.
1019, 84 L. Ed. 1283 (1940). In the instant case, the United
States pursues a right created by a federal statute and
proceeds in its sovereign capacity and, as such, is not subject
to a laches defense. Summerlin, 310 U.S. at 417, 60 S. Ct.
1019; c.f, United States v. California, 507 U.S. 746, 757-58,
113 S. Ct. 1784, 123 L. Ed. 2d 528 (1993). That the United
States acts both on its own behalf as well as that of the
Cayugas does not affect this principle for “it is also settled
that state statutes of limitation neither bind nor have any
application to the United States, when suing to enforce a
public right or to protect interests of its Indian wards.”
United States v. Minnesota, 270 U.S. 181, 196, 46 S. Ct. 298,
70 L. Ed. 539 (1926); see also Nevada v. United States, 463
U.S. 110, 141-42, 103 S. Ct. 2906, 77 L. Ed. 2d 509 (1983);
Board of County Comm’rs of Jackson County v. United
States, 308 U.S. 343, 350-51, 60 S. Ct. 285, 84 L. Ed. 313
(1939).

The majority explains its application of the defense of laches
to claims asserted by the United States by suggesting that the
doctrine that the United States is not subject to the defense of
laches “does not seem to be a per se “ rule. See Maj. Op. at
278. For this point, it relies upon Clearfield Trust Co. v.

39a

United States, 318 U.S. 363, 63 S. Ct. 573, 87 L. Ed. 838
(1943). However, that case is distinguishable from the instant
one in two important respects, both of which exclude this
case from the limited holding reached in Clearfield Trust.

First, the Court in Clearfield Trust limited its application of
non-statutory time bars to those claims brought by the United
States that were not subject to any statutory time bar. /d. at
367, 63 S. Ct. 573 (“In absence of an applicable Act of
Congress it is for the federal courts to fashion the governing
rule of law according to their own standards.”). The claims
in this case are subject to a statutory time bar. See 28 U.S.C.
§2415; see also supra at 280-81. As Congress has already
defined the applicable time bar, Clearfield Trust supports the
conclusion that this court should not reach the question of
whether it ought to fashion a time-bar, whether from state
law or federal common law. See id. at 367, 63 S. Ct. 573; see
also Northwest Airlines, Inc. v. Transport Workers Union of
America, AFL-CIO, 451 U.S. 77, 95, 101 S. Ct. 1571, 67 L.
Ed. 2d 750 (1981) (“the federal lawmaking power is vested
in the legislative, not the judicial, branch of government;
therefore federal common law is ‘subject to the paramount
authority of Congress.) New Jersey v. New York, 283 U.S.
336, 348, 51 S. Ct. 478, 75 L. Ed. 1104 (1931); Westnau
Land Corp. v. United States Small Bus. Admin., 1 F.3d 112,
117 (2d Cir. 1993) (“[T]he acknowledged federal interest in
the ‘rights of the United States arising under nationwide
federal programs,’ United States v. Kimbell Foods, Inc., 440
U.S. 715, 726, 99 S. Ct. 1448, 59 L. Ed. 2d 711 (1979),
should be determined by application of the statutory rule
provided by Congress.”’).

Second, the Clearfield Trust Court limited the application of
laches to those claims deriving not from the sovereign
authority and rights of the United States but, instead, relating

40a

to the actions of the United States with respect to business
and commerce. Clearfield Trust, 318 U.S. at 369, 63 S. Ct.
573 (“The United States as drawee of commercial paper
stands in no different light than any other drawee.”); see also
Franconia Assocs. v. United States, 536 U.S. 129, 141, 122
S. Ct. 1993, 153 L. Ed. 2d 132 (2002) (citing Clearfield Trust
for the proposition that “[o]nce the United States waives its
immunity and does business with its citizens, it does so much
as a party never cloaked with immunity.”); Mobil Oil
Exploration & Producing Southeast, Inc. v. United States,
530 U.S. 604, 607, 120 S. Ct. 2423, 147 L. Ed. 2d 528 (2000)
(“When the United States enters into contract relations, its
rights and duties therein are governed generally by the law
applicable to contracts between private individuals.” (internal
quotation marks omitted)). In the instant case, the United
States is not a commercial actor. Here, it acts both “to
enforce a public right [and] to protect interests of its Indian
wards.” United States v. Minnesota, 270 U.S. at 196, 46 S.
Ct. 298. It is clear, then, that the United States’s claims in
this case, both on its own behalf and as trustee to the Tribe,
are not barred by laches.

After relying on Clearfield Trust to open the door for
application of laches to claims by the United States, the
majority then finds that the defense is appropriate in the
instant case. In doing so, it relies on a Seventh Circuit case
for the proposition that three Supreme Court cases support
the application of laches in cases such as this one. United
States v. Admin. Enters., Inc., 46 F.3d 670, 673 (7th Cir.
1995) (citing Occidental Life Ins. Co. v. EEOC, 432 USS.
355, 373, 97 S. Ct. 2447, 53 L. Ed. 2d 402 (1977); Heckler v.
Community Health Services of Crawford County, Inc., 467
U.S. 51, 60-61, 104 S. Ct. 2218, 81 L. Ed. 2d 42 (1984);

4la

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.
Ct. 453, 112 L. Ed. 2d 435 (1990)).

However, neither Administrative Enterprises, nor the cases
cited therein, support the application of laches to the United
States in the instant case. Of the three cases cited by
Administrative Enterprises, only one specifically addresses
the applicability of a delay-based defense like laches in a suit
brought by the United States.? Occidental Life, 432 U.S. at
373, 97 S. Ct. 2447. The Occidental Life Court declined to
allow delay to bar a claim by the United States. /d. To the
extent that it “refuse[d] to shut the door completely to the
invocation of laches or estoppel,” Administrative Enterprises,
Inc., 46 F.3d at 673, it did so, in dicta, only where a “private
plaintiff's unexcused conduct of a particular case” made —
limitations on relief, specifically backpay, appropriate.
Occidental Life, 432 U.S. at 373, 97 S. Ct. 2447. Occidental
Life, thus, differentiates between claims and remedies, and
unexcused delay by private plaintiffs and the United States.
Id. It does not support application of laches here, where the

9 Heckler concerns estoppel, not laches, but does confirm as “well
settled” precedent that “the Government may not be estopped on the same
terms as any other litigant.” 467 U.S. at 60, 104 S.Ct. 2218. /rwin
addresses equitable tolling and concludes that the statute of limitations on
a private party’s claim against the United Statutes may be equitably tolled
where the statutory waiver of sovereign immunity allowing for the private
right action also makes the cule of equitable tolling applicable to the
United States. 498 U.S. at 95-96, 111 S.Ct. 453. Notably, the Court
commented that “Congress, of course, may provide otherwise if it wishes
to do so.” /d. at 9S, 111 S.Ct. 453.

42a

majority applies the defense to bar the claim itself, rather
than a specific remedy for the claim. !?

These cases cannot support the proposition that this Court
has the authority to craft a federal common law defense of
laches against an Indian land claim sought by the United
States. Indeed, Administrative Enterprises’ “three main
possibilities for when laches might apply against the United
States,” Maj. Op. at 279, are not present in this case. With
regard to Administrative Enterprises’ first “possibility,”
egregious delay, while two hundred years is surely a
significant length of time, the majority fails to consider the
nature of that delay and to what extent it may be excused.
With regard to Administrative Enterprises’ second
“possibility,” the absence of an applicable statute of
limitations, here Congress did enact a statute of limitations
applicable to the plaintiffs’ claims for damages. 28 U.S.C.
§2415(a).!! With regard to Administrative Enterprises’ third
“possibility,” situations where the United States pursues a
“private” interest, the Supreme Court has found that, insofar

10 Another case, NLRB v. P*/*E Nationwide, Inc., is relied on by the
majority for the proposition that “laches is generally and we think
correctly assumed to be applicable to suits by government agencies ....”
Maj. Op. at 278 (quoting 894 F.2d 887, 894 (7th Cir. 1990)). That case,
however, limits the court’s equitable discretion to areas where neither
Congress nor a federal agency has made a “value choice” contrary to the
exercise of equitable discretion of the court. P*/*E Nationwide, Inc., 894
F.2d at 894 (“[W]e do not mean to suggest that the court is entitled to
substitute its conception ... for that of Congress ...”). Congress has
spoken on the issue of time bars to Indian land claims. While
distinguishing between remedies may be appropriate, barring: those
claims entirely ignores the controlling statute.

11 That §2415(a) applies only to actions for money damages supports the
conclusion that laches cannot be applied to bar a claim for money
damages, but may be applied to bar a claim for equitable relief.

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as it acts on behalf of Indian tribes, the United States acts to
protect a public interest, entirely dissimilar from the private
interest served where the United States pursues an action
based on its purely commercial endeavors. See United States
v. Minnesota, 270 U.S. 181, 196, 46 S. Ct. 298, 70 L. Ed.
539 (1926) (describing United States’ role in serving public
interest by protecting “interests of its Indian wards.”).
Indeed, it is in its role as a sovereign that the United States
participates in this case. /d. at 194, 46 S. Ct. 298 (United
States’ interest in suit in which it represents Indians’ interests
as trustee is based in its own sovereignty.). Thus, even if
Administrative Enterprises were persuasive precedent, this
case presents none of its suggested possible situations
justifying use of laches against the United States.

Il. The Import of City of Sherrill

The majority sees “no reason why the equitable principles
identified by the Supreme Court in City of Sherrill should not
apply to this case, whether or not it could be technically
classified as an action at law.” Maj. Op. at 276. However,
the clear language of City of Sherrill confines its holding to
the use of laches to bar certain relief, not to bar a claim or all
remedies:

“The question whether equitable consideration should
limit the relief available to the present day Oneida
Indians ....” City of Sherrill, 125 S. Ct. at 1487
(quoting Oneida IT, 470 U.S. at 253, n. 27, 105 S. Ct.
1245) (emphasis added).

“In contrast to Oneida I and JJ, which involved
demands for monetary compensation, OIN sought
equitable relief prohibiting, currently and in the

44a

future, the imposition of property taxes.” Jd. at 1488
(emphasis added).

“When the Oneidas came before this Court 20 years
ago in Oneida II, they sought money damages only.
The court reserved for another day the question
whether ‘equitable considerations’ should limit the
relief available to the present-day Oneidas.” /d. at
1489 (internal citations omitted) (emphasis added).

“The principle that the passage of time can preclude
relief has deep roots in our law.... It is well-
established that laches, a doctrine focused on one
side’s inaction an? the other’s legitimate reliance,
may bar long-dormant claims for equitable relief.”
Id. at 1491 (emphasis added).”. . . the Oneida’s long
delay in seeking equitable relief ... evokes the
doctrine[ |] of laches...” Jd. at 1494.

The City of Sherrill opinion is not support for the application
of the equitable defense of laches as a bar to money damages
in this case.!2

The City of Sherrill Court’s analysis, which underpins its
holding, is framed by the nature of the equitable remedy that
the Oneida Indian Nation sought there. See 125 S.Ct at 1488
(“OIN sought equitable relief’); id at 1489 (“OIN seeks
declaratory and injunctive relief”); id at 1491 (“This long
lapse of time, during which the Oneidas did not seek to
revive their sovereign control through equitable relief in
court, and [evidence of prejudice] ... preclude OIN from

12 It is also telling that Justice Stevens noted in dissent that the majority
“relie[d] heavily on the fact that the Tribe is seeking equitable relief in
the form of an injunction.” /d. at 1496 (Stevens, J., dissenting) (emphasis
in the original and added).

45a

gaining the disruptive remedy it now seeks.”); id. at 1494
(“long delay in seeking equitable relief”); id. at 1494 n. 14
(“specific relief”). This language makes clear that the City of
Sherrill Court addresses laches in the context of the specific
equitable relief sought in that case. Further, it repeatedly
notes the difference between a right and a remedy. As the
City of Sherrill Court notes, the question of right is ‘very
different” from the question of remedy. /d. at 1489 (quoting
Dan B. Dobbs, Law of Remedies §1.2 (\st ed. 1973)). The
City of Sherrill Court also quotes with approval a Tenth
Circuit case for the principle that “the distinction between a
claim or substantive right and a remedy is fundamental.” /d.
at 1489 (quoting Navajo Tribe of Indians v. New Mexico, 809
F.2d 1455, 1467 (10th Cir. 1987). As if to emphasize this
point, and its importance to the opinion, the City of Sherrill
Court also quotes, with approval, the district court in Oneida
Indian Nation of New York v. County of Oneida on this
distinction between right and remedy. “[There is a] ‘sharp
distinction between the existence of a federal common law
right to Indian homelands,’ a right this Court recognized in
Oneida II, ‘and how to vindicate that right.” City of
Sherrill, 125 S. Ct. at 1488 (quoting Oneida Indian Nation of
N.Y. v. County of Oneida, 199 F.R.D. 61, 90 (N.D.NLY.
2000) (emphasis in original).

Further, the Supreme Court in City of Sherrill addresses at
length an Indian land claim case, Felix v. Patrick, 145 US.
317, 12 S. Ct. 862, 36 L. Ed. 719 (1892) 125 S. Ct. at 1491-
92. While the Felix Court applied laches to bar the equitable
remedy of a constructive trust over land conveyed by the
plaintiffs Indian ancestor in violation of a statutory
restriction, the Court noted, in dicta, that a money damages
award would be appropriate. Felix, 145 U.S. at 334, 12 S.
Ct. 862. While the law demanded a measure of money

46a

damages, the delay and prejudice due to changed
circumstances over thirty years supported the application of
the doctrine of laches to the equitable remedy of constructive
trust. /d. at 333-34, 12 S. Ct. 862; see Ciy of Sherrill, 125 S.
Ct. at 1491-92.

Finally, the City of Sherri’: Court expressly noted that, “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 IJ.” 125 S. Ct. at 1494. While this
statement is not dispositive of whether laches would apply
here to bar a money damage award, the Court in City of
Sherrill did reiterate its observation in Oneida II that
“application of a nonstatutory time limitation in an action for
damages would be ‘novel.’” /d. at 1494 n. 14. (quoting
Oneida IT, 470 U.S. at 244, 105 S. Ct. 1245). In contrast, it
noted that “no similar novelty exists when the specific relief
OIN now seeks would project redress for the Tribe into the
present and future.” /d. (emphasis added). In light of the
clear language and the analysis in City of Sherrill, the
conclusion that City of Sherrill limits the application of the
equitable defense of laches to the award of forward-looking,
disruptive equitable relief is compelling.'5

Further, even assuming laches could apply to the money
damages award in this case, there is nothing in the record
before us to support a finding of the disruptive nature of the
monetary award. The City of Sherrill decision certainly

13 The contention that a damages award for either past fair rental value
or present fair market value would “project redress into the present and
future,” Maj. Op. at 275, in order to bring that award within the scope of
the City of Sherrill holding vitiates any reasonable meaning the Supreme
Court could have intended that phrase to have.

47a

supports affirming the District Court’s denial of repossession
as an equitable remedy, based on the District Court’s findings
that the equitable considerations involved in the case did not
permit it. See Cayuga X, 1999 U.S. Dist. LEXIS 10579, at
*74-*99.!4 However, there is no basis to support such a
finding on the prejudice element with regard to the award of
money damages as a remedy in this case.

IV. Conclusion

While City of Sherrill may have “dramatically altered the
legal landscape” of Indian land claims, Maj. Op. at 273, it
does not reach as far as the majority reads it. City of Sherrill
holds that laches can bar a tribe from obtaining the disruptive
remedy of re-assertion of tribal sovereignty. Furthermore,
the case supports the proposition that the nature of forward-
looking, disruptive remedies generally will serve as equitable
considerations that can bar such equitable remedies as re-
possession, even against the United States. An award of
money damages is not an equitable remedy, nor is it forward-
looking or disruptive in the way dispossession inherently is.
Nothing in City of Sherrill suggests a total bar on the ability

14 The District Court did not conclude, as the majority suggests, that the
“doctrine of laches bars the possessory land claim presented by the
Cayugas here.” Maj. Op. at 277. Indeed, the District Court concluded,
on then-existing precedent, that laches did not bar the plaintiff's claims,
Cayuga I, 565 F. Supp. at 1310, but it later concluded that equitable
considerations did prevent the award of the equitable remedy of
possession. Cayuga X, 1999 U.S. Dist. LEXIS 10579, at *98. Properly
distinguishing between claims and remedies, the District Court concluded
that, “in the context of determining whether ejectment is an appropriate
remedy, the delay factor tips decidedly in favor of the defendants.” /d. at
*36.

48a

of Indian tribes to obtain damages for past wrongs where
Congress has explicitly provided for it.

City of Sherrill serves as strong support to affirm the District
Court’s refusal to award possession to the plaintiffs, and |
join in the judgment to that extent. However, I respectfully
dissent from that part of the majority opinion which
dismisses the Tribe’s claim for money damages. While there
remain issues as to the nature or amount of the money
damages awarded, | cannot join the majority in reading City
of Sherrill to bar all remedies.

While I do not join entirely in the majority’s resolution of
this case, I wholeheartedly concur in its comments
concerning Judge McCurn’s tireless and thoughtful attention
to this complex and challenging case for over two decades.

413 F.3d 266

Cayuga |]

Cayuga Il

Cayuga Ill

Cayuga IV

Cayuga V

Cayuga VI

Cayuga VII

Cayuga VIII

Cayuga IX

Cayuga X

49a
Appendix B
List of District Court Opinions

Cayuga Indian Nation v. Cuomo, 565 F.
Supp. 1297 (N.D.N.Y. 1983)

Cayuga Indian Nation v. Cuomo, 667 F.
Supp. 938 (N.D.N.Y. 1987)

Cayuga Indian Nation v. Cuomo, 730 F.
Supp. 485 (N.D.N.Y. 1990)

Cayuga Indian Nation v. Cuomo, 758 F.
Supp. 107 (N.D.N.Y. 1991)

Cayuga Indian Nation v. Cuomo, 762 F.
Supp. 30 (N.D.N.Y. 1991)

Cayuga Indian Nation v. Cuomo, 771 F.
Supp. 19 (N.D.N.Y. 1991)

Cayuga Indian Nation v. Pataki,
unpublished opinion (N.D.N.Y. July 10,
1996)

Cayuga Indian Nation v. Pataki, 1999
WL 224615 (N.D.N.Y. April 15,4999)

Cayuga Indian Nation v. Pataki, 1999
WL 258433 (N.D.N.Y. April 30, 1999)

Cayuga Indian Nation v. Cuomo, 1999
WL 509442 (N.D.N.Y. July 1, 1999)

Cayuga XI

Cayuga XII

Cayuga XIII

Cayuga XIV

Cayuga XV

Cayuga XVI

Cayuga XVII

50a

Cayuga Indian Nation v. Pataki, 79 F.
Supp. 2d 66 (N.D.N.Y. 1999)

Cayuga Indian Nation v. Pataki, 79 F.
Supp. 2d 78 (N.D.N.Y. 1999)

Cayuga Indian Nation v. Pataki, 83 F.
Supp. 2d 318 (N.D.N.Y. 2000)

Cayuga Indian Nation v. Pataki,
unpublished opinion (N.D.N.Y. April 18,
2000)

Cayuga Indian Nation v. Pataki, 2000
WL 654963 (N.D.N.Y. May 17, 2000)

Cayuga Indian Nation v. Pataki, 165 F.
Supp. 2d 266 (N.D.N.Y. 2001)

Cayuga Indian Nation v. Pataki, 188 F.
Supp. 2d 223 (N.D.N.Y. 2002)

Sla »
Appendix C

United States District Court,
N.D. New York.
THE CAYUGA INDIAN NATION OF NEW YORK. et al.,
Plaintiffs,
and
The Seneca-Cayuga Tribe of Oklahoma and the United States
of America,
Plaintiff-Intervenors,
Vv.
George E. PATAKI, as Governor of the State of New York,
et. al., Defendants.
No. 80-CV-930, 80-CV-960.

Oct. 2, 2001.

MEMORANDUM-DECISION AND ORDER
MCCURN, Senior District Judge.

INTRODUCTION

On January 18, 2000, the court commenced with jury
selection in this historic land claim litigation. The court’s
resolution of the liability issues,! left only one issue for the

1 See Cayuga Indian Nation of New York v. Cuomo, 730 F. Supp. 485
(N.D.N.Y. 1990) (“Cayuga /V”’) (granting Cayuga’s motion for partial
summary judgment, and declaring that its 1795 and 1807 Treaties with
the State were invalid under the Nonintercourse Act because the Federal
Government never ratified those conveyances); Cayuga Indian Nation of
New York v. Cuomo, 758 F. Supp. 107 (N.D.N.Y. 1991) (because the
Cayuga obtained recognized title in the subject land through the 1794
Treaty of Canandaigua, defendants’ abandonment defense was
insufficient to defeat the Cayuga’s claims to that land); and Cayuga
Indian Nation of New York v. Cuomo, 771 F. Supp. 19 (N.D.N.Y. 1991)
(defense of laches unavailable).

52a

jury’s consideration--the amount of compensation, if any, to
which the tribal plaintiffs, the Cayuga Indian Nation of New
York and the Seneca-Cayuga Tribe of Oklahoma (“the
Cayuga”),? were entitled for the loss of their tribal lands over
two centuries ago. Nineteen days, six witnesses, whose
testimony comprises the nearly 3,000 page trial transcript,
and approximately 130 Exhibits later, on February 17, 2000,
the jury rendered its verdict. It found the State of New York
(“the State”)3 liable to the Cayuga in the total amount of
$36,911,672.62. Those damages were divided into two
categories: (1) $1,911,672.62 for the fair rental vaiue of the
Cayuga’s former homeland for 204 years; and (2) an
additional $35,000,000.00 in damages for future loss use and
possession of that same land.

BACKGROUND

No less than twenty years of litigation preceded that jury
verdict. Assuming familiarity with the protracted and at
times convoluted history of this action, the court will not

2 Nearly two years after the commencement of this action, the United
States of America (“the U.S.”) intervened as a plaintiff in this action “on
its own behalf and to enforce the restrictions on alienation found in 25
U.S.C. § 177 [the Nonintercourse Act]” for the tribal plaintiffs. See U.S.
Complaint in Intervention at 2,9 4. Hereinafter, the U.S. and the Cayuga
plaintiffs will be collectively referred to as “plaintiffs,” unless it is
necessary to distinguish between the two.

3 To avoid “a morass of complicated and lengthy litigation which could
easily extend well into the next century[,]” if the court allowed the
Cayuga to proceed against all of the defendants, including the
approximately 7,000 individual landowners, it granted the U.S.’ motion
“to proceed to trial first against the State[.]” See Cayuga Indian Nation of
New York v. Pataki, 79 F. Supp. 2d 66, 76 (N.D.N.Y. 1999) (“Cayuga X17
“). Hence, the State was the lone defendant in the jury trial or what has
come to be known as “Phase I” of this litigation, and it continued to be
the only defendant in ‘Phase II” of this litigation, the non-jury trial. -

53a

repeat that entire history herein. To place the issue of
prejudgment interest which now dominates this litigation in
context, however, an overview of some of this court’s rulings
in recent years, especially as to remedies, is in order.

IL. Pre-Trial Motions

Faced with several motions in limine seeking to “severely
limit the remedies available to the Cayugas[,]” in Cayuga
Indian Nation of New York v. Pataki, No. 80-CV-930, 80-
CV-960, 1999 WL 224615, at *1 (N.D.N.Y. April 15, 1999)
(“Cayuga VIIT’), the issue of prejudgment interest first arose.
Holding that federal rather than state law governs the issue of
the availability of prejudgment interest, this court recognized
its “sweeping discretion to decide whether to award
prejudgment interest ..., as well as [its] considerable latitude
in establishing both the rate of interest and the accrual date.”
Id. at *17 (emphasis added). Ultimately, the court declined
to decide whether the Cayuga were entitled to recover
prejudgment interest because at that time the record was not
sufficiently developed.

The court also was operating in a “legal vacuum” because the
parties had not addressed the factors which the Second
Circuit in Wickham Contracting v. Local Union No. 3, Int'l
Bhd. of Elec. Workers, 955 F.2d 831 (2d Cir. 1992), had
identified as relevant in deciding “whether to award
prejudgment interest [.]” See id at *19 and *21. After
reciting the Wickham factors, the court stressed that an award
of prejudgment interest was not a foregone conclusion. /d. at
*16.

With a date for jury selection looming, the parties sought
further clarification on a variety of issues including, yet
again, prejudgment interest. The court held that it would not
receive proof of present day value during Phase I. In a final

54a

round of motions in limine made in anticipation of Phase I,
the U.S. sought, inter alia, to have the court “reserv[e] to
[itself] all issues of law and equity, leaving only fact issues as
to the amount of damages for the jury[.]” Cayuga Indian
Nation of New York v. Pataki, 79 F. Supp. 2d 78, 86
(N.D.N.Y. 1999) (“Cayuga XII’). Adopting this approach,
the court held that equitable issues such as laches would “be
reserved to [it], and if necessary, the same may be the subject
of post-trial motions and/or additional post-trial proceedings
before the court, without a jury.” /d. at 92.

IT. Jury Instructions

At various points during Phase I the court instructed the jury
in conformity with the pre-trial rulings outlined above.
Among other things, in its preliminary instructions the court
briefly explained the respective roles of the jury and the
court, i.e., the court decides legal issues and the jury decides
fact issues. Consistent with those different roles, the court
further explained that the trial would occur in two phases. In
Phase I the jury’s task was to resolve the issue of the amount
of damages, if any, to which the Cayuga would be entitled.
The court then explained that there would be another
proceeding after the jury trial where the Court would resolve
certain equitable issues, such as interest.

At the close of the proof the court reiterated these points,
explaining that “interest on the amount of any damages you
may award, conversion to present day value of any past
damages you-may award,” and “a possible reduction in any
damages you may award to the plaintiffs due to their alleged
failure to timely commence this action, that is, laches[,]” are
all equitable issues outside the province of the jury. See
Transcript (“Tr.”) at 2748-49. Thus, the jury was
unequivocally advised, not once, but twice that it should not
concern itself with equitable issues such as_ interest.

55a

Consistent with the foregoing, the jury was explicitly
instructed that it “should [not] ... calculate an amount to
compensate the plaintiffs for the fact that they did not have
the use of the money between when the injury occurred and
the present.” /d at 2773-74. That particular charge
concluded by advising the jury: “It has previously been
decided that the Court will determine whether an award of
same will or will not be made in connection with the amount
you determine as damages.” Jd. at 2774. The jury was
further instructed that it “should not make any adjustment for
the effect of inflation or the loss of use of the money.” Id. at
2773 (emphasis added). Presupposing that it would award
damages in dollars for the year the injury was sustained, the
jury also was instructed that it “should not, ... attempt to
convert the value of the dollar at the time of the injury for
which you have determined damages to an equivalent value
in current dollars [.]” /d. Further, insofar as calculating lost
rent, the jury was instructed, “you must determine ... the loss
of the value of the use of the lands of the Cayugas for each of
the 204 years they were wrongfully detained or prevented
from the use of the land.” Jd. at 2768-69.

Hil. Verdict

The verdict form was fairly lengthy, but the jury only had to
answer two discrete questions. The first was:

What amounts, if any, do you find that
plaintiffs have been damaged for loss of use
and possession of the claim area from July 27,
1795 to date as measured by a fair rental value
without improvements but with infrastructure
in place, less credit, if any, to the State for
payments made to plaintiffs?

56a

Gov. Exh. 21 at 1, 91 (footnote omitted). The verdict form
also required the jury to indicate for each year from July 27,
1795, through “2000 to date,” the following: the “amount”
of such loss; the “credit to the State [;]” and the “net
amount.” See id. at 1. For the first designated time period,
from July 27, 1795 to the end of that year, the jury found that
the Cayuga had sustained losses in the amount of $7,148.69.
See id. For every full year thereafter through 1999, the jury
found that the Cayuga had sustained losses in the amount of
$17,156.86 per year. For the year 2000, to the verdict date,
February 17, 2000, the jury found that the Cayuga had
sustained losses in the amount of $2,859.48. See id. at 10.

In accordance with a stipulation between the Cayuga and the
State, the jury then credited the State for its annuity payments
to the Cayuga for the years 1795 through 1999. After finding
total rental losses in the amount of $3,510,007.61, and
payments by the State totaling $1,598, 334.99, the jury
concluded that the Cayuga were entitled to $1,911,672.62 for
the fair rent value of the claim area over the 204 years. See
id.

After polling the jury, the court advised the parties that it
would not enter a final judgment at that time because of the
outstanding issues which needed to be resolved in Phase II.
The parties were given the opportunity within sixty days of
the verdict to file any motions in relation thereto, but no such
motions were filed.

Anticipating Phase II, among other things, the parties filed
their respective economists’ reports. On May 17, 2000, after
reviewing the same, those reports revealed an “enormous
disparity[ ]” as to the amount of prejudgment interest to
which the Cayuga may be entitled, and the court was forced
“to conclude that it [could not] properly assess the
availability of prejudgment interest in the first instance

57a

without some context, beyond the mathematical calculations
found in th[ose] ... reports.” Cayuga Indian Nation of New
York v. Pataki, Nos. 80-CV-930, 80-CV-960, 2000 WL
654963, at *3 (N.D.N.Y. May 17, 2000), amended on other
grounds, 2000 WL 687901 (N.D.N.Y. May 22, 2000).
Therefore, the court agreed to allow the parties’ witnesses to
testify as to certain “equitable factors[.]” See id. The court
went on to list several such factors, but it did not mention
allowing any witness to testify as to what the jury actually
intended when it rendered its verdict. In the end though, the
court was extremely generous in terms of the proof which it
permitted during Phase II, reasoning:

Because the stakes are simply too high, the
experts’ views too antithetical, and the
equities on all sides too important to
disregard, ... the only way to proceed at this

- juncture is to make every effort to insure that
all parties to this litigation have an equal
opportunity to present their respective
versions of history, and how those versions
impact the remaining issues of prejudgment
interest and laches.

Id. at *4.

The Phase II trial was lengthy and the court’s task in
analyzing the extensive proof adduced therein was an
arduous one, to say the least. Under the best of
circumstances analysis of the Phase II proof would have beer
difficult. But the court’s task was unnecessarily complicated
by the fact that all of the parties frequently either cited to a
document which did not support their contention, or equally
disconcerting, would take a quote out of context. All too
often this selective quoting meant that when the court
consulted a source document or the transcript, the assertion

58a

was not actually supported therein.4 Moreover, when the
court read such a quote in context the meaning was often
times very different than that ascribed to it by the quoting
party. The court is fully aware that lawyers have an
obligation to represent their clients “zealously[,]” see N.Y.
code of Professional Responsibility Canon 7, reprinted in
N.Y. JUD. LAW APP. (McKinney Supp. 2001); but there are
limits to such zealousness and a lawyer does not do his or her
client any great service by engaging in such tactics which
distract from a party’s otherwise valid legal arguments and
undermine a lawyer’s credibility to a certain extent.

4 The parties are equally guilty of this practice. To give but a few
examples, the U.S. declares that “[t]he Cayuga minority protested the
treaty vehemently, and again accused New York of having defrauded
them at the Treaty 1 Albany in 1789.” United States’ Revised Post-Trial
Memorandum of Law (“U.S. Post-Tr. Memo.”) at 26. It then cites page
2995 of Dr. Whiteley’s testimony to support that assertion. Support for
the U.S.” proposition cannot be found anywhere on that page however. In
another example, the State compounded its misstatement by inaccurately
stating the opposition’s position. The State asserts that according to the
Cayuga “/bjoth the 1789 and 1795 treaties, ..., were negotiated in bad
faith because they were not conducted with the full council of chiefs of
the Iroquois confederacy.” State of New York Defendants’ Phase II Post-
Hearing Reply Memorandum (“St. Reply”) at 10 (emphasis added). The
State then goes on to cite to the Cayuga’s and U.S.’ memorandum
respectively. When those cites are consulted, however, they pertain only
to the 1789 Treaty and not to the 1795 Treaty.

Equally troubling, and adding to the court’s burden, was the parties’
tendency to at times cite to an entire exhibit without referring to a page
number. This practice is bothersome enough when the documents are
relatively short, such as when the State cited to four speeches from the
1795 Treaty negotiations without including specific references, see State
of New York Defendants’ Phase II Hearing Memorandum (“St. Pre-Tr.
Memo.”) at 10; but when the cite is to a voluminous exhibit such as the
two volume “Proceedings of the Commissioners of Indian Affairs,”
compiled by historian, Franklin Hough, this practice is inexcusable. See
St. Exh. 35.

59a
Discussion

The issues the parties raise in connection with Phase II are
legion. The first and in some ways perhaps most important
issue pertains to the meaning of the jury verdict itself.

I. Verdict

More than four months affer the jury rendered its verdict and
more than four months after the jury’s discharge, the State
raised for the first time the possibility of an inconsistent
verdict. In its June 30, 2000, memorandum of law submitted
prior to Phase II the State did not employ the phrase
“inconsistent verdict.” Its economist Richard S. Grossman
did not shy away from that concept in his report,
unequivocally stating that the “verdict presents the Court
with an inconsistency{.]” See St. Exh. 721 at 10,9 26. In
the State’s view this alleged inconsistency arises because in
Phase I the jury, colloquially speaking, impermissibly
compared apples and oranges. See Pre-Tr. Memo at 74.

This supposedly impermissible comparison occurred,
Grossman believes, because the jury did not distinguish
between current and constant dollars as he defines and
employs those terms. In Grossman’s report he wrote that
from an economic standpoint there are “two types of dollars:
‘current dollars,’ which are merely the dollars of a particular
year in that year, and ‘constant dollars,’ which are sums that
are expressed in the dollars of one particular year (called the
base year).” St. Exh. 721 at 7, 18 (emphasis in original).
When “compar[ing] quantities of dollars from different
years,” Grossman declared that “[i]t is not possible to make
an economically meaningful comparison between sums
denominated in dollars of different years.” /d at 8. § 20
(emphasis added). Grossman therefore asserted “it makes no
economic sense to add or to subtract sums denominated in
dollars of different years[;]” yet that is precisely what the

60a

jury did Grossman concludes. Jd. (emphasis added). Such
calculations are in Grossman’s view “completely
unacceptable from an economic perspective[.]” /d. That type
of calculation is “troublesome” suggests Grossman because,
for example, when subtracting 1999 and year 2000 dollars,
those dollars “differ in value by 3 percent[.]” /d
Accordingly, a meaningful comparison of dollars in different
years can only be had, Grossman contends, when those
dollars are “denominated in the constant dollars of any given
year.” See id.

Grossman posits that the jury disregarded these general
economic precepts by crediting the State with payments to
the Cayuga through the years in “current dollars,” while at
the same time using “constant dollars,” as he defines that
term, in determining the amount of lost rent in any given
year. See id. at 9, 9 22 and 23. To support his theory as to
how the jury calculated lost rent damages, Grossman made
two assumptions. First, because “the ‘credit to state’ column
... corresponds exactly to the amounts actually paid by the
[State] to the plaintiffs in each year of the 204-year period
[,!” Grossman believes that “the figures stated in this column
are clearly expressed in the dollars of the years in which they
were paid, i.e., current dollars.” Jd. at 922.

Second, in determining the amount due the Cayuga each year
for lost rent, Grossman hypothesizes that the jury used
“constant” year 2000 dollars. To support this hypothesis,
Grossman observes that the jury “award[ed] [a total of] $3.5
million divided up into 204 equal payments (since $3.5
million divided by 204 equals $17,156.86 exactly).” /d. at {
23. Further, Grossman observes that the $3.5 million in lost
rent damages, as found by the jury is (not coincidentally in
Grossman’s view), equivalent to exactly ten percent of the
$35 million which the jury awarded the Cayuga for future
loss of use and possession of the claim area. Given what

6la
Grossman deems to be this obvious correlation between the
total rental value damages and the current fair market value
of the land, and the fact that rents are identical in each year
from 1795 to 2000, he concludes that “it is...clear that the
jury expressed the lost rents in current dollars.” Jd.

Grossman also relies upon the court’s instruction to the jury
not to adjust the award or “attempt to convert the value of a
dollar at the time of the injury[ ],” see Tr. at 2773, to support
his conclusion “that the jury’s verdict in the ‘amount’ column
is expressed in dollars of the year 2000.” See St. Exh. 721 at
9, § 23. Additionally, Grossman opines that the dollars in
the “amount” column cannot be expressed in current dollars
because prices have not stayed constant over the past 204
years. See id. at 9,4 24. Finally, Grossman believes in part
that because the jury was instructed not to make adjustments
for inflation, it “gave its verdict in the dollars it ... knows
best: constant 2000 dollars.” See id. at 10,4 25.

In light of the foregoing, instead of accepting the verdict on
its face, the State maintains that the court should “adjust[ ]”
the verdict “by either converting the annual rent to historical
damages for each year or by converting the State payments to
present-day dollars.” State Defendants’ Memorandum of
Law in Support of their Request to Examine the Economic
Witnesses on the Jury’s Award for Fair Market Rental Value
of the Claim Area at 2 (emphasis added); see also St. Post-
Tr. Memo. at 70. The State argues that adjusting the jury
verdict in this way is entirely proper because where. as the
State believes occurred here, “the verdict is not clear on its
face, it is appropriate to look at how the verdict was
constructed|.]” Tr. at 6116. Once the court makes such an
adjustment or conversion, the State wants the court to
recalculate the jury verdict using those adjusted figures. The
State contends that this process, as opposed to the process
outlined by Grossman, which the State suspects the jury

62a
employed, will “yield a meaningful total net rental figure”
from which the court can then compute prejudgment interest.
See id.

In contrast to the State’s approach, which requires
interpreting the jury verdict, both the Cayuga’s and the U.S.’
respective economists, while arriving at different conclusions
as to the amount of prejudgment interest, accept the verdict
“at face value.” See Cayugas’ Post-Trial Memorandum
(“Cay.Post-Tr.Memo.”) at 22. Dr. Berkman, the U.S.’
economist, acknowledged that his calculations were based
upon “the numbers presented on the jury verdict form[.]”
See Tr. at 6053-54. The Cayuga’s economist, Dr. Temin,
similarly testified that in terms of yearly rent payments, he
“started from the jury verdict form[.]” See id. at 5809. Thus
Drs. Temin and Berkman assumed, in conformity with the
charge, that the jury expressed both the State’s credit
payments and the fair rental value “in dollars of the
particular year in which they were incurred.” U.S. Post-Tr.
Memo. at 60 (emphasis added). Any other reading of the
verdict amounts to improper “second-guessing” of the jury’s
intent, according to the Cayuga. See Cay. Post-Trial Memo.
at 20. Finally, characterizing Grossman’s suggested
“adjustments” to the verdict as “tampering” with the same,
the Cayuga are taking the position that there is no need, and
indeed it would be improper for the court to make the
adjustments which the State is urging because such
adjustments would “lead [ ] to a complete nullification of the
jury’s award[.}” Cayugas’ Post-Trial Reply Memorandum
(“Cay.Reply”) at 8 (citations omitted); see also U.S. Post-
Trial Memo. at 65.

Given these conflicting views as to the meaning of the jury
verdict, the first issue which this court must consider is
whether it is proper, in hindsight, to reexamine the verdict in
an effort to ascertain how the jury arrived at the final damage

63a
figure for 204 years of lost rent. More specifically, in
calculating prejudgment interest, should the court, as the
State urges, “adjust” the dollar amounts as found by the jury,
or should it simply make any prejudgment interest
calculation it deems proper using the dollar figure,
unadjusted, found ex ihe verdict form.

5 Somewhat surprisingly, the Cayuga are not questioning the timing of
the State’s argument that the verdict is inconsistent. If the court
ultimately agrees with the State, finding that the verdict is inconsistent,
the ramifications are tremendous, including the possibility of a retrial. In
terms of both judicial economy and upholding the sanctity of jury
verdicts generally, retrials are disfavored. That is especially so in a case
of this magnitude where the trial was relatively lengthy and hard-fought.
See Grant v. Westinghouse Elec. Corp., 877 F. Supp. 806, 815 (E.D.N.Y.
1995). Given the enormity of the task which a retrial would involve here, -
and given the fact that the State did not even hint at the possibility of an
inconsistent verdict until four months after the discharge of the jury, the
court cannot ignore the timing of the State’s argument in this regard.
Generally “if trial counsel fails to object to any asserted
inconsistencies and does not move for resubmission of the inconsistent
verdict before the jury is discharged, the party’s right to seek a new trial
is waived.” James v. Tilghman, 194 F.R.D. 408, 413 (D. Conn. 1999)
(quoting Manes v. Metro-North Commuter R.R., 801 F. Supp. 954, 959
(D. Conn. 1992), aff'd without published opinion, 990 F.2d 622 (2d Cir.
1993)) (emphasis added by Manes court). The purpose of waiver is easy
to see; it “promote[s] the efficiency of trials by allowing the original
deliberating body to reconcile inconsistencies without the need for a new
presentation of evidence toa different body.” Wright v. Wilburn, 194
F.R.D. 54, 59 (N.D.N.Y. 2000) (internal quotation marks and citations
omitted). Otherwise, especially where counsel is fully aware of the
claimed inconsistency when the jury renders its verdict, the jury’s work-
product is “unfairly scuttled[.J” /n re Wedtech Corp., 196 B.R. 274, 278
(Bankr. S.D.N.Y. 1996) (internal quotation marks and citations omitted).
Instead of taking a hard-line approach to waiver, the Second Circuit in
Denny v. Ford Motor Co., 42 F.3d 106, 111 (2d Cir. 1994), adopted a
“case-by-case” approach to evaluating whether a party has waived its
right to challenge a verdict as inconsistent. While the Second Circuit
does “take a guarded approach to the per se application of the waiver

64a

rule, acknowledging that a party’s failure to make a timely objection
carries some weight in [a] court’s analysis of the waiver issue[,]” at the
same time it recognizes “that a court may not completely abdicate its
responsibility to resolve inconsistencies in jury verdicts.” Tilghman, 194
F.R.D. at 413 (internal quotation marks and citations omitted); see also
Trinidad v. American Airlines, Inc., No. 93 Civ. 4430 SAS, 1997 WL
79819, at *2 (S.D.N.Y. Feb.25, 1997) (“[Ajlthough this Circuit has
rejected a per se waiver rule, waiver can and should be applied in
appropriate cases.”)

Adopting a “contextual approach” to waiver, see Manes, 801 F. Supp.
at 959, the Second Circuit in Lavoie v. Pacific Press & Shear Co., 975
F.2d 48 (2d Cir. 1992), found that the defendant manufacturer waived its
challenge to the jury verdict as inconsistent where it made that challenge
for the first time in a post-trial motion, and where it failed to raise that
inconsistency before the jury’s discharge. /d. at 54. In a similar vein, in
Tilghman, 194 F.R.D. at 412, the court deemed the plaintiff to have
waived his argument that the verdict form’s answers were inconsistent
where he did not object to that form after the verdict. See id. at 413. Nor
did that plaintiff ask for reconsideration of the jury’s verdict, or move for
a new trial on that basis. See id.; see also Castle v. Leach Co., 4 F. Supp.
2d 128, 130 (N.D.N.Y. 1998) (in products liability and negligence case,
plaintiff waived right to seek a new trial based upon an asserted
inconsistent verdict where she did not object to the verdict sheet at the
charge conference, nor to the jury’s answers; and she did not move for
resubmission to the jury to resolve the alleged inconsistency); Blissett v.
P_K. Deputy Eisensmidt, D.S.S., 940 F. Supp. 449 (N.D.N.Y. 1996)
(McCurn, J.) (defendant correction officers waived right to object to
verdict as inconsistent based upon a finding of a constitutional violation,
but no finding of battery, where despite several opportunities, they failed
to object to the same before the_jury’s discharge). By the same token,
however, in Denny itself the Second Circuit held that the defendant
manufacturer did not waive its objection to submitting to the jury the
issues of strict products liability and breach of implied warranty where
the defendant had timely objected to such submission in that it was made
before the jury was instructed on the claims, arguing that it could lead to
inconsistent results. See 42 F. 3d at 111. The Second Circuit also noted
that resubmission to the jury would have amounted to no more than
renewal of the party’s earlier objection. See id Thus, in essence,
whether or not a party is deemed to have waived its right to object to a
verdict as inconsistent depends largely upon the timing of that objection.

65a

In accordance with the waiver principles developed within this
Circuit, here, in all likelihood, the State did waive its right to object to the
jury’s verdict as inconsistent. First of all, the State did not raise the
specter of an inconsistent verdict prior to the jury’s discharge, thus
preventing the court from resubmitting the case to the jury for further
deliberations to clarify and/or perhaps correct this perceived
inconsistency. The State also did not object to the jury’s answers
immediately after it the verdict, even though the jurors were individually
polled, giving the State additional time in which to contemplate the jury’s
verdict. Due to the State’s silence, the court was never made aware of
this claimed inconsistency prior to discharging the panel.

The jury has long since been discharged and along with that the
possibility of reconciling the jury’s verdict has also disappeared.
Furthermore, if this alleged inconsistency is as readily transparent as the
State seems to believe, it is difficult to imagine why the State did not
immediately notify the court of same and seek to have the verdict
resubmitted to that jury which had attentively sat through several weeks
of often tedious testimony. See Trinidad, 1997 WL 79819, at *2 (“[I]f
the alleged inconsistency is as blatant as plaintiff suggests, plaintiff
cannot ... claim that the inconsistency was unnoticeable at the time of the
verdict and therefore that plaintiff was justified in his delay.”). {n short,
the State had a number of opportunities to object to the jury verdict form,
as well as the instructions, on the basis that possibly an inconsistent
verdict would result: (1) during the charge conference, which
commienced on a Thursday, and continued over to the following Monday,
giving the State ample time to study the proposed verdict form and the
charge with an eye toward possible inconsistencies; (2) after the court’s
instructions, but before the jury began deliberations; (3) and again after
the jury returned its verdict. The State was silent at each of those critical
junctures. In fact, the court ventures to say that this alleged inconsistency
did not become evident to the State except with the advantage of
hindsight when its retained economist analyzed the verdict and the
process which the jury supposedly undertook in arriving at same. Having
said all that, the court need not definitively hold that the State has waived
its right to object to the verdict as inconsistent because, for the reasons set
forth above, the court is not persuaded that an inconsistency exists here.
Consequently, there is no danger in the present case of the court
abdicating its responsibilities to reconcile a claimed inconsistent verdict.

66a

To support its argument that the court shouid “look behind”
the jury verdict, the State relies heavily upon Sharkey v.
Lasmo (AUL Ltd.), 214 F.3d 371 (2d Cir. 2009). According
to the State, Sharkey stands for the proposition “that where
the verdict is not clear on its face, it is appropriate to look at
how the verdict was constructed[.]” Tr. at 6116. It is also
“appropriate” under Sharkey, argues the State, for the court
to consider evidence regarding the jury’s intent in rendering
its verdict. See id. at 6117.

In Sharkey, a case brought pursuant to the Age
Discrimination in Employment Act (“ADEA”), the plaintiff
argued “that because he did not include lost pension benefits
in his calculations of damages ... or attempt to quantify his
lost benefits ..., the jury must not have included them it its
award[;]” hence the district court erred in denying an award
of prejudgment interest and pension benefits. Sharkey, 214
F.3d at 375. The defendant countered that because the
evidence included references to pension benefits offered to
plaintiffs colleagues, when the jury awarded plaintiff
“damages for [his] fofa/ financial losses|,]” it included the
value of his lost pension benefits in the verdict. See id.
(emphasis in original) (internal quotation marks omitted).
The defendant also pointed to the fact that the jury had been
instructed that plaintiff was entitled to recover his “economic
loss[;]” and that he “was entitled to recover lost salary and
benefits, including ... fringe benefits.” /d Finally, the
defendant noted that the jury was also instructed that it “may
award [plaintiff] an amount equal to the salary and benefits
he would have received ... less the amount of salary and
benefits he received after he left the employ of the
defendants, including severance payments, pension benefits
and amounts from other employers ....” /d (emphasis in
original) (internal quotation marks omitted).

67a

Given the ambiguous state of the record as to whether the
jury included the value of lost pension benefits in its verdict
for “ ‘total financial losses [,]’” the Second Circuit concluded
that it was impossible to definitively say whether the jury
included the value of such benefits in making its award. See
id. Therefore, the Court instructed the district court on
remand to “make a determination whether the jury’s award
included the value of lost pension benefits.” /d.

On remand the Second Circuit also instructed the district
court “to apportion the jury’s award[ ]” to determine what
part was attributable “to stock rights and options and the
value of lost pension benefits[.]” /d. Such apportionment
was necessary according to the Second Circuit because an
award of “prejudgment interest may be inappropriate on the
portion attributable to the value of lost pension benefits, if
any.” /d.

Sharkey does not mandate the conclusion that this court
should, after-the-fact, in effect rewrite the jury verdict here.
There is a fundamental distinction between Sharkey and the
present case--a distinction which the State conveniently
disregards. In Sharkey the district court’s task on remand
was to ascertain the scope of the jury’s award and to
apportion it. Here, the State is asking the court to engage in a
far different task--a task which would, as will be seen, result
in usurping the jury’s function. In the present case it is not
simply a matter, as it was in Sharkey, of ascertaining the
scope of the jury’s award and then apportioning it. Rather,
analyzing the verdict in the manner which the State is
advocating would require this court to examine the Phase |
evidence in its entirety, as well as the jury instructions, and
then speculate as to how the jury derived damages for fair
rental value. The analysis which the State proffers through
Grossman would also require the court to improperly assume
that the jury disregarded the court’s instructions. Plainly

68a
such an analysis goes far beyond any contemplated by the
Sharkey Court.

Of equal if not more import is that in Sharkey the possibility
of an inconsistent verdict was never raised; but the State is
raising that possibility now. Therefore, this court’s
obligations differ significantly from those of the district court
in Sharkey. Because the State is claiming that the verdict is
potentially inconsistent, this court has an obligation to
harmonize the verdict where possible--an obligation which
did not arise in Sharkey. In short, given the obvious
differences between Sharkey and the present case, the court
declines to rely upon the latter as justification for, as the State
insists, ascertaining “how the verdict was constructed [.]”
See Tr. at 6116.

In addition to Sharkey, to support its assertion that the court
should scrutinize this verdict and adjust it in the manner
which Dr. Grossman is urging, the State cites to Malarkey v.
Texaco, Inc., 983 F.2d 1204 (2d Cir. 1993). Claiming that
the district court’s award of equitable relief, in the form of
ordering plaintiff's promotion upon her reinstatement, “went
far beyond making [her] whole, as mandated by the
ADEAJ,]” on appeal the defendant employer sought, inter
alia, to set aside that relief for an abuse of discretion. See id.
at 1214. The Second Circuit in Malarkey did observe that the
district court had “surmised [that] the jury awarded plaintiff
$65,000 by comparing her salary to that of ... [another
employee who was given the secretarial position to which
plaintiff claim[ed] she was entitled].” /d. (emphasis added).

Relying upon the just quoted language from Malarkey, the
State urges this court to “surmise” that the jury calculated its
award in the manner which Dr. Grossman posits. The court
will not do that because Malarkey presents an entirely
different situation than does the present case. In exercising

69a

its “broad” discretion to fashion relief under the ADEA by
ordering plaintiff's promotion, the district court in Malarkey
was drawing what the Second Circuit implicitly found to be a
“logical extension” of the jury’s award “express
findings[.]” See id. In sharp contrast with what the State is
asking this court to do, the district court in Malarkey did not
adjust or rewrite the jury’s factual findings; nor did it
supplant those jury findings with its own--both of which
would happen if this court were to adopt the State’s
argument. Analyzing the verdict as the State’s economist
suggests would require more than a “logical extension” of the
jury’s verdict. It would require this court to completely
transform the Phase I verdict, so much so that it would result
in substantially altering if not completely reversing that
verdict. Clearly, such a readjustment of the jury’s factual
findings is not- what the Second Circuit had in mind in
Malarkey when it implicitly approved of the fact that the
district court had surmised how the jury arrived at a back pay
award. Becaus. falarkey is readily distinguishable from the
present case, it does not advance the State’s argument in any
way. Accordingly, Malarkey does not, as the State contends,
support this court reexamining and ultimately readjusting the
jury’s verdict as to fair rental value. In sum, the State has not
brought to the court’s attention any legal authority to support
its argument that the court should essentially rewrite the
jury’s findings as to lost rent damages.

This omission by the State is all the more glaring given the
plethora of case law set forth below pertaining to the sanctity
of a jury’s verdict and a court’s duty to reconcile a
purportedly inconsistent verdict. Typically that case law
centers on situations where courts are confronted with
potentially inconsistent verdicts in the context of either a
motion for a new trial or a motion for judgment as a matter of
law. Although the State is not seeking a new trial, those

70a
cases are instructive at this juncture nonetheless, particularly
in the absence of any case law directly on point.

In this Circuit “‘[w]hen confronted with a potentially
inconsistent jury verdict, the court must ‘adopt a view of the
case, if there is one, that resolves any seeming
inconsistency.’” Densberger yv. United Technologies
Corporation, 125 F. Supp. 2d 585, 598 (D. Conn. 2000)
(quoting Turley v. Police Dep't of the City of N.Y., 167 F.3d
757, 760 (2d Cir. 1999)) (other citation omitted). Thus
‘““(blefore a court may set aside a special verdict as
inconsistent and remand the case for a new trial, it must make
every attempt ‘to reconcile the jury’s findings, by exegesis if
necessary.” Jd. (quoting Turley, 167 F.3d at 760) (other
citations omitted). “ ‘[A]nd[,] if there is any way to view a
case that makes the jury’s answers to the special verdict form
consistent with one another, the court must resolve the
answers that way even if the interpretation is strained.””
Wright, 194 F.R.D. at 57 (quoting McGuire v. Russell Miller,
Inc., 1 F.3d 1306, 1311 (2d Cir. 1993)) (other citation
omitted). The mere fact that a trial court may disagree with a
jury’s verdict does not provide a basis for granting a motion
for a new trial based upon an alleged inconsistent verdict. See
Wright, 194 F.R.D. at 57 (citing Saloomey v. Jeppesen &
Co., 707 F.2d 671, 679 (2d Cir. 1983)).

In assessing whether a given verdict is inconsistent, a court is
not limited to examining “ ‘just the [jury] answers
themselves.’ “ See Densberger, 125 F. Supp. 2d at 598
(quoting McGuire, 1 F.3d at 1311) (citations omitted). The
court “ ‘should refer to the entire case[,]’” see id, including

jury instructions. See Finnegan v. Fountain, 915 F.2d 817,
820 n.3 (2d Cir. 1990) (citing Gallick v. Baltimore & Ohio R.
Co., 372 U.S. 108, 118-22, 83 S. Ct. 659, 9 L. Ed. 2d 618
(1963)). “This duty ‘derives from the Seventh Amendment’s
obligation on courts not to recast factual findings of a jury,

Tla
., and is based on the notion that ‘juries are not bound by
what seems inescapable logic to judges.’” Densberger, 125
F. Supp. 2d at 598 (quoting /ndu Craft, 47 F.3d at 497) (other
citations omitted).

In attempting to reconcile a seemingly inconsistent verdict,
the Second Circuit has held that “[w]here ‘the district court
properly instructed the-jury ..., [t]here is a strong presumption
that the jury in reaching its verdict complied with those
instructions.”” Jd. Given that “strong presumption,” the
Second Circuit has held that “[a] jury’s verdict reached after
proper instructions must be upheld where there is a
reasonable explanation for the jury’s seemingly inconsistent
answers.” Bonner vy. Guccione, 178 F.3d 581, 588 (2d Cir.
1999) (internal quotation marks and citation omitted). In
fact, the Second Circuit has expressly stated that “[gliven
correct instruction on the law and no clear disregard for that
instruction on the face of the verdict, a jury verdict must
remain immune from questioning by the district court.” Jd. at
588 (internal quotation marks and citations omitted). As the
foregoing principles show, the Second Circuit “has been
aggressive in [its] efforts to harmonize inconsistent jury
verdicts.” Shaun P. Martin, Rationalizing the Irrational:
The Treatment of Untenable Federal Civil Jury Verdicts, 28
Creighton L.R. 683, 717 (1995).

It is fundamental that “‘[w]hen a jury returns a verdict by
means of answers to special interrogatories [under Rule 49(a)
], the findings must be consistent with one another, as they
form the basis for the ultimate resolution of the action.”
Densberger, 125 F. Supp. 2d at 598 (quoting Crockett v.
Long Island R.R., 65 F.3d 274, 278 (2d Cir. 1995)).
Furthermore, “where the special verdict answers appear to be
inconsistent but there is a ‘view of the case that makes the
jury’s answer[s] ... consistent, they must be resolved that
way.” Tolbert v. Queens College, 242 F.3d 58, 74 (2d Cir.

72a

2001) (quoting Atlantic & Gulf Stevedores, Inc. v. Ellerman
Lines, Ltd., 369 U.S. 355, 364, 82 S. Ct. 780, 7 L. Ed. 2d 798
(1962)). Here, because the jury was asked to make certain,
specific factual findings as to the amount of damages, and
because it was not asked to determine liability, this is a
“special” verdict under Fed. R. Civ. P. 49(a). The present
verdict further conforms with a Rule 49(a) verdict in that it
“did not offer the jury the ultimate choice normally called for
by a general verdict--the defendant is liable to the plaintiff
for a specified amount of damages, or the defendant is not
liable to the plaintiff.” See Bradway v. Gonzales, 26 F.3d
313, 317 (2d Cir. 1994) (internal quotation marks and
citation omitted). Consequently, in analyzing whether or not
this verdict is inconsistent, the court will treat the same as a
“special verdict” in accordance with Rule 49(a).

The State, through its economist Grossman, is claiming that
the verdict is inconsistent because purportedly whe
calculating fair rental damages, the jury uniformly employed
year 2000 dollars in determining the yearly lost rent, bui
from those amounts it subtracted dollars in the year in which
the State made payments. It is conceivable that the jury did
in effect, as the State maintains, subtract apples from
oranges. It is “equally rational to believe,” however, that the
jury did not engage in such a comparison. See Indu Craft, 47
F.3d at 497. In fact, keeping with its “‘duty ... to attempt to
harmonize the jury’s answers, if it is at all possible under a
fair reading of the responses[,]’” the court has little difficulty
finding that this verdict is not inconsistent. See Densberger,
125 F. Supp. 2d at 598 (internal quotation marks and citation
omitted).

Examining both the verdict form and the relevant jury
instructions, as the court must, see Finnegan, 915 F.2d at 820
n.3 (citation omitted), it can be readily determined that the
jury found the amount of lost rent using dollars in the years

73a

in which that rent was lost--not as the State urges in year
2000 dollars. Any other reading of the verdict would require
the court to assume that the jury disregarded the court’s
explicit instruction that it “should not, ... attempt to convert
the value of the dollar at the time of the injury for which you
have determined damages to an equivalent value in current
dollars[.]” Tr. at 2773 (emphasis added). In other words the
jury was instructed, albeit implicitly, to award fair rent
damages for each of the 204 years in the year those damages
were sustained and not to convert the same to an equivalent
value in year 2000 dollars--the year of the verdict.

Because “there is no indication to the contrary, it must be
assumed that the jury followed [that] instruction{ ][.]” See
Gierlinger v. Gleason, 160 F.3d 858, 875 (2d Cir. 1998)
(internal quotation marks and citation omitted). By
following the instruction not to convert, it is obvious that the
jury found the amount due for lost rent in each of the 204
years in the dollars of those particular years. There is no
dispute that the jury then subtracted dollars of each particular
year in which the State made payments to the Cayuga. See,
e.g., U.S. Post-Trial Memo. at 60; and Tr. at 6357. Thus, the
jury did subtract like dollars. Consequently, there is a
plausible explanation for the jury’s answers regarding lost
rent which eliminates the State’s claimed inconsistency for
that aspect of the jury’s award.

The confusion here arises over the definition of “current.”
Grossman’s definition of “current” is different than the
meaning which the court, the lawyers and the jury attributed
to “current” in connection with the instruction not to convert.
According to Grossman, economically speaking “current”
refers to “dollars of a particular year in that year [.|” See St.
Exh. 721, at 7,“ 18 (emphasis in original). Therefore, when
Grossman read the instruction not to convert “to an
equivalent value in current dollars[,]” he defined “current”

74a

differently, i.e., as “dollars of a particular year in that year.”
See St. Exh. 721 at 7, § 18. Applying that definition to the
instruction not to convert, Grossman surmised that the jury
calculated lost rent in year 2000 dollars and in keeping with
his reading of that instruction, the jury did not convert those
dollars to the years in which those losses were sustained.
However, in the context of the court’s instruction not to
convert, “current” actually meant year 2000 dollars. Based
upon that definition, the jury was instructed that it was not to
convert the dollar at the time of injury, i.e., a 1795 dollar to
current or year 2000 dollars.

The State is overlooking the fact, however, that “[l]ogical,
not economic consistency is the touchstone[ ]” in

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0788%3A2. Public record. Not legal advice.