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.

Navajo Nation v. EEOC Denied; Oneida Land Claim Uncertain — UPDATED

The Supreme Court released its order list for the week, and all the Navajo Nation/Peabody Coal claims were denied. The Oneida land claim has not yet been granted or denied. It is possible the case may be relisted for another conference, though that’s not entirely clear. The order is here.

Update: The Court has relisted the petitions for the October 7 conference.

U.S. v. New York/Oneida Indian Nation v. Oneida County — SCOTUSblog Petitions to Watch

No surprise here. Here they are, from the SCOTUSblog site:

Title: United States v. State of New York
Docket: 10-1404
Issue(s): Whether the United States may be barred from enforcing the Nonintercourse Act against a state that repeatedly purchased and resold (at a substantial profit) Indian lands in violation of the Act between 1795 and 1846, based on the passage of time and the transfer of the unlawfully obtained Indian lands into the hands of third parties, when the United States seeks monetary relief only against the state.

Certiorari stage documents:

Title: Oneida Nation of New York v. County of Oneida, New York
Docket: 10-1420
Issue(s): (1) Whether the court of appeals contravened this Court’s decisions in Oneida Indian Nation of New York v. County of Oneida and City of Sherrill v. Oneida Indian Nation by ruling that “equitable considerations” rendered petitioners’ claims for money damages for the dispossession of their tribal lands in violation of federal law void ab initio; and (2) whether the court of appeals impermissibly encroached on the legislative power of Congress by relying on “equitable considerations” to bar petitioners’ claims as untimely, even though they were brought within the statute of limitations fixed by Congress for the precise tribal land claims at issue.

Certiorari stage documents:

News Coverage of Oneida Land Claims Cert Petition before the Supreme Court

Here, via How Appealing.

An excerpt:

When it comes to the ongoing litigation between the Oneida Indian Nation and surrounding municipalities, it’s a long-running story with no end in sight.

The Oneida Indian Nation recently filed to bring its land-claim case to the U.S. Supreme Court. If the court accepts the case, it still might not be the end of 37 years of litigation over the roughly 250,000-acre claim.

If the court accepts the case, it simply would decide if the Oneidas are entitled to seek damages for the loss of that land. The nature of those damages still would have to be decided by a lower court if the sides couldn’t reach a negotiated settlement.

The issues between the Nation and the state and municipalities have been before the U.S. Supreme Court three times — two of which were related to the land-claim case.

“It’s the endless story, unfortunately,” Oneida County Executive Anthony Picente said.

The Nation had no comment on the filing.

Oneida Indian Nation v. County of Oneida Cert Petition

Here:

Oneida Indian Nation of N.Y. v. County of Oneida

Questions presented:

1. Whether the court of appeals contravened this Court’s decisions in Oneida Indian Nation of New York v. County of Oneida, 470 U.S. 226 (1985), and City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), by ruling that “equitable considerations” rendered petitioners’ claims for money damages for the dispossession of their tribal lands in violation of federal law void ab initio.

2. Whether the court of appeals impermissibly encroached on the legislative power of Congress by relying on “equitable considerations” to bar petitioners’ claims as untimely, even though they were brought within the statute of limitations fixed by Congress for the precise tribal land claims at issue.

Kate Fort on The New Laches and the Iroquois Land Claims

Kathryn Fort has posted a draft of her paper, Disruption and Impossibility: New Laches and the Unfortunate Resolution of the Iroquois Land Claims in Federal Court, forthcoming in the Wyoming Law Review as part of an Indian law symposium, on SSRN.

Here is the abstract:

That the law changes over time is no secret. That the law changes based on the parties involved is less obvious, but still no secret. In the case of the Haudenosaunee land claims cases, however, the law shifted dramatically and quickly based entirely on the identity of the parties. In less than five years, the federal appellate courts changed the law so drastically to all but end more than thirty years of modern litigation, reversing years of relative fairness at the district court level. These actions required a fundamental shift in the law of equity: the creation of a new equitable defense for governments against Indian land claims. How the courts accomplished so much in such a short amount of time requires a close reading of the cases and a few logical leaps.

The first part of this article will give a brief history of the New York land claims, focusing on the Oneida Indian Nation and the Cayuga Indian Nation of New York. While the tribes have been fighting the status of this land since the original agreements were signed in the late eighteenth and early nineteenth century, this article looks to the modern era of land claims in the federal courts. The second part of this article will review how a decision in the Oneida claims case directly informed City of Sherrill v. Oneida Indian Nation. The third part will focus on the Cayuga Nation line of cases and how Cayuga Indian Nation of New York v. Pataki changed the fundamental understanding of the equitable defense of laches into a new defense used to defeat tribal land claims. Finally, the fourth part of this article will look closely at the most recent loss, Oneida Indian Nation v. County of Oneida, where the court admits the creation of a new equitable defense. This defense, identified as “new laches” or “Indian law laches” is a defense that can prevent even the bringing of a land claim in the courts. The defense is no longer traditional laches, but rather an equitable defense that follows none of the rules of equity, and exists only in federal Indian law.

More News Coverage of Oneida Land Claim Case

From How Appealing:

“Legal battles over land claims possibly helped Oneidas”: Today’s edition of The Post-Standard of Syracuse, New York contains an article that begins, “The Oneida Indian land claim might be dead after an appeals court decision last week, but the 40-year legal battle might have helped lay the seeds of the prosperity the New York tribe now enjoys.”

2nd Circuit: Not Sure Why You Thought We Meant Laches When We Said Laches

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?

News Coverage on Oneida Land Claim

From How Appealing:

“Appeals court dismisses Oneida Indians’ 40-year-old land claim”: The Syracuse Post-Standard contains this article today.

The Oneida Daily Dispatch reports today that “Appeals court dismisses land claim.”

And The Utica Observer-Dispatch contains an article headlined “Court: No need for state to compensate Oneidas on land; Appeals judges reverse key element of ’07 claim ruling.”

You can access yesterday’s ruling of a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit at this link.