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.