Federal Court Declines (again) to Apply Equitable Defenses re: Osage Mineral Council

Here are updated materials in United States v. Osage Wind LLC (N.D. Okla.):

219 Amended DCT Order

229 Motion for Reconsideration

234 Osage Wind Response

235 US Response

244 Reply to Osage Wind

245 Reply to US

264 DCT Order Denying Reconsideration

Prior post here.

Second Circuit Affirms Cuyuga Nation Immunity from County Taxes even under Immovable Property Exception

Here are the materials in Cayuga Indian Nation of New York v. Seneca County, New York:

CA2 Opinion

Seneca County Brief

Cayuga Tribe Brief


Lower court materials here.

Federal Circuit Rejects Shinnecock Nation’s Judicial Takings Claims re: Dismissal of Land Claims under Sherrill

Here is the opinion in Shinnecock Indian Nation v. United States.

An excerpt:

Accordingly, we affirm the United States Court of Federal Claims’ determination that the Nation’s breach of trust claims are not yet ripe for review, vacate its ruling that it lacked jurisdiction over those claims, and remand the case with instructions to dismiss the breach of trust claims without prejudice.


A similar analysis applies here. The Nation alleges that in applying the doctrine of laches to bar its land claim, the district court improperly “took away the Nation’s legal right to sue for compensation for its stolen land.” The Court of Federal Claims, however, is without authority to adjudicate the Nation’s claim that it suffered a compensable taking at the hands of the district court. See Allustiarte, 256 F.3d at 1352; Joshua, 17 F.3d at 380. The court has no jurisdiction to review the decisions “of district courts and cannot entertain a taking[s] claim that requires the court to scrutinize the actions of another tribunal.” Innovair, 632 F.3d at 1344 (alteration in original) (citations and internal quotation marks omitted). As the government correctly notes, “[d]eciding whether the district court’s judgment resulted in an unconstitutional taking of the Nation’s property would require the Court of Federal Claims to review the judgment and pass on its correctness.” Just as the plaintiffs’ takings claim in Allustiarte was an improper collateral attack on the judgment of the bankruptcy courts, the Nation’s proposed judicial takings claim is an attempt to mount an improper collateral attack on the judgment of the district court.

Briefs here. Lower court materials here.

Laches Does Not Apply to an Action in Law, Unless it Does

Yesterday’s Supreme Court decision on the copyright of the Raging Bull screenplay involved both copyright law and laches. At issue was how long the screenwriter’s heir could wait to sue MGM for permission to renew the copyright. Copyright was originally sold to a company in 1976, and the heir waited until 2009 to sue for copyright infringement. She did communicate with MGM her displeasure during this time, but did not sue. The lower courts dismissed her claim on laches (as a refresher, laches is an affirmative defense used when the plaintiff waits an “unreasonable” amount of time to bring a claim and the defendant is injured by that delay).

In reversing the 9th Circuit, Justice Ginsburg cites to Oneida Indian Nation v. County of Oneida 470 U.S. 226, 244, n.16 (1985) “(“[A]pplication of the equitable defense of laches in an action at law would be novel indeed.”).” It would be! But wait! That’s exactly what the Second Circuit did in Cayuga Indian Nation v. New York (relying on City of Sherrill v. OIN), as Justice Breyer points out in his dissent: “Lower courts have come to similar holdings in a wide array of circumstances—often approving not only of the availability of the laches defense, but of its application to the case at hand. E.g., Cayuga Indian Nation of N. Y. v. Pataki, 413 F. 3d 266, 274–277 (CA2 2005) (laches available in a “possessory land claim” in which the District Court awarded damages, whether “characterized as an action at law or in equity,” and dismissing the action due to laches);”. No one cited to City of Sherrill, perhaps because that case only “evokes” the doctrine of laches.

And in a majority footnote:

“13 Assuming Petrella had a winning case on the merits, the Court of Appeals’ ruling on laches would effectively give MGM a cost-free license to exploit Raging Bull throughout the long term of the copyright. The value to MGM of such a free, compulsory license could exceed by far MGM’s expenditures on the film.”

Because we wouldn’t want laches to be used to achieve THAT to result.

UCLA American Indian Studies Conference — March 7, 2014

Here. Fletcher et al. papers to be discussed (“Tribal Disruption and Indian Claims“; “(Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community“; and “Tribal Disruption and Labor Relations“), and panel:

Plenary 1: Innovations in Law

  • Kristen A. Carpenter, Associate Professor of Law, Co-Director of American Indian Law Program, University of Colorado, Boulder
  • Carole E. Goldberg, Vice Chancellor, UCLA Academic Personnel, and Jonathan D. Varat Distinguished Professor of Law, UCLA School of Law
  • Matthew L.M. Fletcher, Professor of Law, Director of the Indigenous Law & Policy Center, Michigan State University
  • Moderator: Angela R. Riley, Professor, UCLA School of Law, and Director, UCLA American Indian Studies Center

Federal Court Issues Clarified Order in St. Regis Mohawk Land Claims (Fort Covington Area Claim)

In short, no dice. Here are the updated materials:

St. Regis Mohawk Motion for Clarification

US Motion for Clarification

USDC NDNY Canadian St. Regis v. New York – Corrected & Clarified Memorandum Decision & Order 7-23-2013

Prior order here.

Federal Court Dismisses Most St. Regis Mohawk Land Claims; Hogansburg Triangle Claims Survive

Here is the opinion in the case captioned Canadian St. Regis Band Mohawk Indians v. State of New York (N.D. N.Y.):

DCT Order July 9, 2013

News coverage here.

Magistrate report and recommendation here.

Objections and responses here:

St. Regis Mohawk Opening Brief

Akwesasne Mohawk Opening Brief

United States Opening Brief

Defendants’ Opening Brief

US Response

Canadian St. Regis Mohawk Response

NY Power Authority Response

St. Regis Mohawk Response

State and Municipal Defendants Response

NY Power Authority Reply

St. Regis Mohawk Reply

Canadian St. Regis Mohawk Reply

Municipal Defendants Surreply

NY Power Authority & State Surreply


Complete Madison County v. Oneida Indian Nation Cert Stage Briefs


11-12-12 Madison v. NY Oneida Cert Petition

New York Amicus Brief in Support of Petition

Oneida Indian Nation of New York  Brief in Opposition

Madison County Cert Stage Reply Brief

Oneida Indian Nation Cert Opposition Brief in Reservation Boundaries Case


1-16-13 12-604 — Madison Countyv. Oneida Indian Nation of New York — S. Ct. Brief in Opposition-

Petition here.


Madison County v. Oneida Indian Nation Cert Petition

As expected, Madison and Oneida Counties filed a cert petition over the Second Circuit’s affirmation of the Oneida reservation boundaries. Here:

11-12-12 Madison v. NY Oneida Cert Petition

Question presented:

Does the 300,000-acre ancient Oneida reservation in New York still exist, neither disestablished nor diminished, despite (1) the federal government’s actions taken in furtherance of disestablishment (including, but not limited to, the 1838 Treaty of Buffalo Creek); (2) this Court’s holding in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 214 (2005) (“Sherrill”) that the Oneida Indian Nation of New York cannot exercise sovereignty over lands it purchases in the ancient reservation area; and (3) this Court’s finding in that case that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries?

Lower court materials here.