In its most recent decision (covered here and here) the Second Circuit in County of Oneida finally acknowledged what we’ve known for some time–whatever the reasoning is behind Sherrill and Cayuga, it’s certainly not laches.  In a stunning, if hardly surprising, defeat, the Court determined that there is a new equitable defense that invokes the principles of laches, but is not actually laches.  The Court states that this new defense “is properly applied to bar any ancient land claims that are disruptive of significant and justified societal expectations that have arisen as a result of a lapse of time during which the plaintiffs did not seek relief.”  This is regardless of the fact that the claims may be “legally viable,” “within the statute of limitations,” are limited to “monetary damages,” and “sound at law.”

What is unsettling about this decision, besides the obvious loss to the tribe after 35 years of litigation, is that rather than acknowledging that the courts have been misapplying laches since 2005 in these cases, the Court simply created a new defense.  In the face of clear and concise criticism from scholars and the United States’ own brief, it would be difficult for a court to properly apply laches to these claims.  However, the idea that the Court would simply create a new equitable defense entirely is a fairly breathtaking development.  The fact that this defense also manages to defeat federal immunity only makes this decision even stranger.

Finally, we should note that this defense does not limit itself to Nonintercourse Act claims, but rather applies to any “ancient” land claims.  This fits clearly into Alex Skibine’s argument that the courts may create a “virulent brand of ‘exceptionalism’ in Federal Indian law where ‘general’ principles are developed and adopted under the guise that they follow general theories of public law applicable to anyone when, in reality, they can only adversely affect Native American interests.”  Technically the definition of this new defense does not require that the claims be Indian land claims, only that they must be “ancient” land claims.  This defense,  however,  would only ever apply to Indian tribes.  So the questions remain–when was the last time a court created an equitable defense?  When was the last time a court created an equitable defense that only applies to tribes?

“Sherrill‘s equitable defense,” as the Court called it, is not simply laches, mostly likely because it deviates so clearly from 699 years of precedent.  As the Court admits, “it is true that the district court in this case did not make findings that the Oneidas unreasonably delayed in the initiation of this action or that the defendants were prejudiced by delay—both required elements of a traditional laches defense.”

Unfortunately for the tribe and the United States, the 2nd Circuit only illuminated this new defense after the parties put forth arguments as to why laches didn’t apply (for very different reasons) in their briefs.   It turns out that arguments against applying laches are not the same arguments that would work against a  Sherrill defense.  Indeed, it’s difficult today to see what arguments could be made against this new defense, so while we’re changing names, how about we stop calling it “equitable” as well?