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.

Fletcher, Fort, and Reo on “Tribal Disruption” Theory in the Michigan Law Review First Impressions

Matthew L.M. Fletcher, Kathryn E. Fort, and Dr. Nicholas J. Reo have published “Tribal Disruption and Indian Claims” in Michigan Law Review’s First Impressions. PDF. Here is a taste:

Legal claims are inherently disruptive. Plaintiffs’ suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive-that is, impossible to enforce or implement in a fair and equitable manner-that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims.[1] The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, including Onondaga Nation v. New York,[2] because it considered the claims so disruptive.

We agree that Indian legal claims are inherently disruptive and may implicate the centuries-old settled expectations of state and local governments and non-Indians. It is empirically and categorically false, however, that the remedies tribal interests seek are impossible to enforce or implement in a fair or equitable manner. Every year in cases against state governments and their political subdivisions, Indian tribes settle long-standing claims that at their outset, often appear intractable, if not downright impossible, to remedy. The recent settlements of claims by the Oneida Indian Nation of New York,[3] the Saginaw Chippewa Indian Tribe,[4] and five Michigan Anishinaabe tribes[5] demonstrate the falsehood of the idea that Indian claims are too disruptive to be remedied. These negotiated settlements powerfully illustrate that the disruption produced by Indian claims has an important function: forcing federal, state, and tribal governments to creatively seek solutions to difficult governance issues in Indian country.

Part I of this Essay describes recent common law, which dismisses Indian claims on the grounds that they are too disruptive. Part II briefly surveys the history of the relationship between Indians and the United States. Part III describes recent settlements between tribal and local governments. Part IV presents our theory of tribal disruption based on notions of ecological disturbance, studied in ecology and related fields. We argue that ecological disturbance in linked social-­ecological systems offers a useful analog to the disruptive nature of Indian claims. These claims can be compared to disturbances in rivers, forests, or other ecosystems. Floods, forest fires, and windstorms break down existing structures, allowing space for reorganization, diversification, and new growth. Tribal claims similarly clear out a legal space for creative and improved governance institutions.

Working Within the Constraints of Sherrill Laches

The decision in the Mohawk land claims case is an interesting and thoughtful example of a district court judge trying to carve out possible remedies in the face of the new (or Sherrill) laches line of cases (Sherrill, Cayuga, Oneida). We’ve long though that the district court judges who wrote hundreds of pages of opinions and spent years on these cases were not pleased with the relatively dismissive opinions of the Second Circuit, overturning their rulings with the ever changing target of new laches.

Assuming, as they must, that they will be overturned when they let any claim go through, the district court judges in these cases have written opinions that attempt to save portions of the claims. Though other similar decisions have been overturned (Oneida), Judge Kahn here attempts to distinguish between the claims, dismissing parts of the claim subject to Sherrill laches, and saving the parts that are not. He specifically mentions new laches as a “peculiar” application of laches to land claims, listing the inconsistencies which are now case law. At 4-5. The court doesn’t allow Defendants to argue laches as a blanket remedy to all of the claims. FN 7. He also points out that new laches is an exception to the usual rule that the United States is not subject to laches, rather than writing as if this has been the case all along. At 15. The opinion also has important language on judicial notice and Census data (though the comment about the highly paid expert was probably unnecessary, given that the Nation was facing a magistrate who wouldn’t accept their Census data, but would accept the State’s. Hiring an expert makes sense in the face of that kind of skepticism). At 24.

Comparing Onondaga, also written by Judge Kahn, with St. Regis Mohawk, another interesting point is the court is most interested in how the facts of the claims can be distinguished from the Sherrill line, rather than how requests for relief differ (Broadly: Sherrill, jurisdiction; Cayuga, money judgment; Oneida, possessory claim; Onondaga, declaratory judgment.). Attempting to work around the disruptive element of new laches by crafting a request for relief that is not disruptive does not work. The very claim is disruptive if the fact pattern is remotely similar.

Finally, and perhaps most importantly, Judge Kahn refuses to let new laches be the be all and end all to these claims. He writes:

That the Second Circuit in Cayuga may have in effect expanded the scope of Sherrill laches in no way leads the Court to conclude that laches should operate as a brightline rule that forecloses any possibility of a successful “ancient” Indian land claim. To conclude otherwise, as Defendants appear to urge the Court to do, would be to ascribe a broader and disturbingly anti-democratic meaning to the recent line of laches cases—that remedial causes of action specifically preserved by Congress may be vitiated in the courts by the categorical application of an equitable defense

At 30.

While it would be highly preferable to have is defense eliminated entirely, given the restraints the district court judges are operating under now, this case is a victory in that it at least acknowledges the fundamental inequity of new/Sherrill laches and continues to find ways to avoid its application.

2nd Circuit Affirms Lower Court Dismissal of Onondaga Land Claim


This appeal is decided on the basis of the equitable bar on recovery of ancestral land in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) (“Sherrill”), and this Court’s cases of Cayuga Indian Nation v. Pataki, 413 17 F.3d 266 (2d Cir. 2005) (“Cayuga”) and Oneida Indian Nation v. County of Oneida, 617 F.3d 114 (2010) (“Oneida”). Three specific factors determine when ancestral land claims are 20 foreclosed on equitable grounds: (1) “the length of time at issue between an historical injustice and the present day”;  (2) “the disruptive nature of claims long delayed”; and (3) “the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to the plaintiffs’ injury.” Oneida, 26 617 F.3d at 127; see also Sherrill, 544 U.S. at 214, 221 (summarizing that the equitable considerations in this area are similar to “doctrines of laches, acquiescence, and impossibility,” and grew from “standards of federal Indian law and federal equity practice”) (internal quotation marks omitted). All three factors support dismissal.

Previous coverage here and here.

Ironies of the Patchak Decision

Here are some interesting ironies of the reasoning and outcome in Patchak.

First, the prudential standing of David Patchak to sue the federal government to protect the rural character of his community (and related objections) — under Michigan law (I think) Patchak would have a much more difficult proof than he does under the conglomeration of statutes Patchak is using (APA, QTA, and I guess IGRA). Just a few weeks ago, the Michigan Court of Appeals (Tobin v City of Frankfort — thanks to B.A. for pointing this one out for me) rejected the standing of a landowner to challenge a development in Benzie County. Here were the injuries complained of:

Intervenor argues that it has established through its members’ affidavits that it has standing to intervene and pursue its member’s claims. The relevant declarations by FOBB members in their September 2000 affidavits primarily detail concerns about (1) increases in population, traffic, noise levels, lights, air pollution, and property taxes; (2) decreases in home values, aesthetics of the neighborhood, and environmental value caused by tree and vegetation removal attributable to the development; and (3) the potential presence of commercial establishments. The generalized concerns relating to environmental impacts, population increases, aesthetics, and pecuniary harm do not suffice to demonstrate “special damages . . . different in kind from those suffered by the community, so as to qualify [intervenor] as an aggrieved party.” Joseph, 5 Mich App at 571. Alternately phrased, development-related aesthetic changes, population increases, environmental impacts, and pecuniary harm will be experienced by other community members to the same extent as affiants.

But that’s not prudential standing, you say. True, but what an irony. This is Patchak’s list of alleged injuries in a nutshell:

To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irreversible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental problems.”

Justice Kagan’s majority opinion then uses the Cohen Handbook as support for the proposition that since Interior takes land into trust for the benefit of Indian tribes (often economic benefit), then anyone seemingly opposed to tribal economies has standing (sorry for the long block quote):

Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Federal Indian Law §15.07[1][a], p. 1010 (2005 ed.) (hereinafter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U. S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus functions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands sufficient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U. S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those lands to support economic development.

So in Michigan, someone who objects to development can’t sue because no one has adopted a statute specifically authorizing such development. In Indian law, someone who objects to tribal development can sue because Congress specifically did adopt a statute authorizing land purchases. The fact that Section 5 exists to remedy incredible tribal land dispossession and poverty is irrelevant.

Second, the land development question — Gun Lake Casino is up and running, and the State of Michigan and the local units of government (well, and the Tribe), are raking in millions upon millions. Patchak wants that to end (because apparently he didn’t care that Wayland’s football players were under a pay-to-play arrangement; more details here).

Continue reading

News Coverage of the 8th Annual Haudenosaunee Conference

From the Democrat and Chronicle:

SYRACUSE — Three federal court decisions regarding Native American land claims in upstate have created legal doctrine that lawscholars meeting in Syracuse described as unsupportable.

About 50 Indian law professors and students discussed the issue Friday at Syracuse University during the eighth annual Haudenosaunee Conference, which continues today. The conference, hosted by the SU Law School’s Center for Indigenous Law, Governance & Citizenship, looks at contemporary legal issues that affect New York’s native peoples.

Referring to a new legal theory espoused in a 2005 decision regarding a tax dispute between the Oneida Nation of New York and the city of Sherrill in Oneida County, Syracuse attorney Joseph Heath said, “It’s racist. It only applies to Indians.”

* * *

Kathryn Fort, staff attorney at the Indigenous Law and Policy Center at Michigan State University, described what she called “new laches” doctrine established by the recent cases. The doctrine departs from the 800-year-old laches theory that says legal complaints can be denied if the plaintiff waits too long and the defendant would be harmed by that delay.

However, even when laches applies, she said, there can still be an equitable remedy — paying for the land taken by illegal treaties, for instance.

In the New York tax and land claim cases, though, no remedy was offered.