Laches – Page 3 – Turtle Talk

Federal Court Rejects Michigan’s Laches Defenses in Saginaw Chippewa v. Graholm

October 30, 2008Matthew L.M. Fletcher3 Comments

Here is the opinion.

An excerpt:

These principles persuade the Court that, as a matter of law, the time-based equitable defenses Defendants wish to advance are inapplicable to the issues here presented and may not otherwise be advanced against the United States’s enforcement of its treaties. Consequently, Defendants may not rely on the time-based equitable defenses of laches, estoppel, acquiescence, or impossibility. In addition, testimony and proofs offered in support of these affirmative defenses are irrelevant. Thus, the United States’s and the Saginaw Chippewa’s motions should be granted.

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Ottawa Tribe v. Ohio Dept. of Natural Resources — Sixth Circuit Materials

September 10, 2008Matthew L.M. Fletcher

Please see our previous post on this case here (it links to the briefs and other materials in the lower court).

Here is the Ottawa Tribe’s opening brief: appellant-brief

And here is the amicus brief signed by the National Congress of American Indians and several Michigan tribes on the laches question: brief-amici-curiae

Kate Fort on The New Laches

August 11, 2008Matthew L.M. Fletcher

Kate Fort of MSU College of Law has posted “The New Laches” on SSRN. This is the first comprehensive and historical study of the application of laches doctrine to sovereigns, federal, state, and tribal. Here is the abstract:

Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will call the “new laches.” This new defense, so far used successfully in Indian land cases in New York state and unsuccessfully elsewhere, has been so broadly construed by the Second Circuit that, if this view is adopted nationwide, it could apply to any treaty-based claim brought by Indians or Indian tribes.

Pro Football v. Harjo — Trademark Claim Against Redskins Dismissed

July 13, 2008Matthew L.M. Fletcher

Again, laches is the culprit.

pro-football-v-harjo-dct-opinion

Saginaw Chippewa v. Michigan Reservation Boundaries Update

May 21, 2008Matthew L.M. Fletcher1 Comment

Laches has reared its ugly head in this case of course. Pending are motions from the United States and the Tribe to strike witnesses and defenses relating to laches, impossibility, estoppel, etc., and a government motion for partial summary J on the defenses.

us-motion-to-strike-laches-witnesses

saginaw-chippewa-motion-to-strike-laches-defenses

city-of-mount-pleasant-response-to-tribe-motion

city-of-mount-pleasant-response-to-us-motion

isabella-county-response-to-both-motions-etc

michigan-response-to-tribe-motion

michigan-response-to-us-motion

–gulig-report [michigan expert witness]

–karamanski-report [michigan expert witness]

Research Note on Barriers to Indian Land Claims

May 6, 2008May 6, 2008Matthew L.M. Fletcher1 Comment

I’ve posted a short paper called “‘Now What the Hell You Gonna Do in Those Days?’ A Research Note on Practical Barriers to Indian Land Claims” on SSRN. Here is the abstract:

There are extra-legal barriers that American Indian people faced when confronted with the illegal theft of their lands, or with any dispossession of their lands. Indian tribes and Indian people faced numerous practical barriers to bringing land and treaty claims prior to the modern era, including without limitation: (1) lack of financial resources; (2) lack of knowledge and sophistication about the American legal system; (3) demoralization; (4) lack of a clear and authorized tribal governmental plaintiff; and (5) government interference and control over tribal affairs.

For Indian tribes pursuing a remedy for these claims, there is a significant defense raised – why didn’t the tribes or the Indians bring these claims before? Since the Supreme Court decided Sherrill v. Oneida Indian Tribe, the equitable defense of laches has been raised by states, local units of government, and property owners against the tribal claims with frightening success rates. The defense is superficially compelling in large part because the practical reasons for failing to bring suit decades sooner might not be considered excusable.

In a pending case, Oneida Indian Nation v. County of Oneida, the National Congress of American Indians attempted to flesh out the practical barriers to tribal land claims in an amicus brief. This short Essay attempts to add to that research. But the ultimate purpose of this Essay is to call for serious empirical research on this difficult question – why didn’t Indians and tribes file suit to vindicate their rights to land?

Ottawa Tribe v. Ohio Dept. Natural Resources Treaty Rights Claim Rejected

April 3, 2008April 3, 2008Matthew L.M. Fletcher1 Comment

Here is the opinion (H/T Indianz). Here is the link to the materials we placed on the blog in December.

“Slumber[ing] on its Rights”: Menominee Tribe v. US

March 15, 2008Matthew L.M. Fletcher

This case regards a claim for contract support costs from IHS. The district court rejected the claim, in part, because the tribe “‘slumber[ed]’ on its rights.” Here are the materials:

DCT Opinion

US Motion to Dismiss

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