UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

THE ONONDAGA NATION, Plaintiff, v. Civil Action No. 05-CV-314 (LEK/DRH)

THE STATE OF NEW YORK, et al., Defendants.

PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTIONS TO DISMISS

Robert T. Coulter (Bar No. 101416) INDIAN LAW RESOURCE CENTER 602 North Ewing Street Helena, MT 59601 Tel: (406) 449-2006 Fax: (406) 449-2031 E-mail: rtcoulter@indianlaw.org Curtis G. Berkey (Bar No. 101147) ALEXANDER, BERKEY, WILLIAMS & WEATHERS LLP 2030 Addison Street, Suite 410 Berkeley, CA 94704 Tel: (510) 548-7070 Fax: (510) 548-7070 E-mail: cberkey@abwwlaw.com

Joseph J. Heath (Bar No. 505660) HEATH LAW OFFICE 716 E. Washington Street, Suite 104 Syracuse, New York 13210-1502 Tel: (315) 475-2559 Fax: (315) 475-2465 E-mail: jheath@atsny.com

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. DEFENDANTS 12(b)(6) MOTIONS SHOULD BE DENIED BECAUSE THEY IMPROPERLY CHALLENGE FACTS THAT MUST BE TAKEN AS TRUE FOR PURPOSES OF THE MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CAYUGA AND SHERRILL DO NOT REQUIRE THE DISMISSAL OF THIS SUIT AS A MATTER OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Cayuga Did Not Rule That Laches Can Be Applied to Bar an Indian Land Claim Without an Evidentiary Hearing and Factual Findings . . . . . . . . . 5 Cayuga Applies Only to Possessory Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.

B. III.

CAYUGA IS INAPPLICABLE BECAUSE THIS IS NOT A DISRUPTIVE LAWSUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 THE APPLICATION OF LACHES TO THE CLAIMS OF THE ONONDAGA NATION CONFLICTS WITH CONGRESS JUDGMENT THAT SUCH CLAIMS SHOULD BE PERMITTED TO GO FORWARD . . . . . . . . . . . . . . . . . . . 10 DEFENDANTS FACTUAL ALLEGATIONS SHOULD BE EXCLUDED FOR PURPOSES OF THESE MOTIONS, AND THESE MOTIONS SHOULD NOT BE CONVERTED TO MOTIONS FOR SUMMARY JUDGMENT . . . . . . . . . 12 IF THE MOTIONS ARE TREATED AS SUMMARY JUDGMENT MOTIONS, THEY SHOULD BE DENIED BECAUSE DEFENDANTS HAVE NOT MET THEIR BURDEN OF PRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE ARE SUBSTANTIAL AND GENUINE ISSUES OF MATERIAL FACT . . . . . . . . . . . . . 15 THE ONONDAGA NATIONS SUIT IS NOT BARRED BY THE SOVEREIGN IMMUNITY OF NEW YORK STATE . . . . . . . . . . . . . . . . . . . . . . . . 25 A. The Relief Sought by the Onondaga Nation Does Not Impermissibly Intrude on the Dignity of New York State and Is Not, Therefore, Barred by the Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Pursuant to its Constitutional War Powers Authority, Congress Has Abrogated New York States Immunity in the Trade and Intercourse Act

IV.

V.

VI.

VII.

VIII.

B.

. . . 29

1.

Congress Has Unequivocally Abrogated New York States Immunity In the Trade and Intercourse Act . . . . . . . . . . . . . . . . . . . . . 29 The Trade and Intercourse Act is a Valid Exercise of Congress Authority Under the War Powers Clause of the Constitution . . . . . . . 33

2.

C.

Governor George Pataki Is Amenable to Suit Under the Doctrine of Ex parte Young . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

IX.

THE DISPUTE BETWEEN THE NATION AND THE COUNTY, CITY AND CORPORATIONS SHOULD BE DETERMINED AS A MATTER OF EQUITY AND GOOD CONSCIENCE IN THE ABSENCE OF A PREDECESSOR IN THE CHAIN OF TITLE TO THE LAND, THE STATE OF NEW YORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 A. The State of New York Is Not Needed for Just Adjudication of Disputes Between the Onondaga Nation and Those Who Currently Claim Title to the Nations Lands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Even If it Is Found That New York Should Be Joined If Feasible, as a Matter of Equity and Good Conscience this Action Should Proceed in its Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 1. A Judgment Declaring the Respective Rights of the Onondaga Nation and the County, the City, or a Corporation, Would Have No Effect on Lands to Which New York Claims Title, and Would Certainly Not Prejudice the State or the Remaining Defendants . . . 46 A Declaratory Judgment Resolving the Dispute over Title to the Lands Claimed by the Onondaga Nation Would Be Adequate for The Parties Remaining in the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 If this Action Is Dismissed Due to the Absence of the State, the Onondaga Nation Will Have No Adequate Remedy Elsewhere . . . . . 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

B.

2.

3.

CONCLUSION

ii

TABLE OF AUTHORITIES CASES ABKCO Music, Inc., v. La Vere, 217 F.3d 684 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Alaska v. Native Village of Venetie, 522 U.S. 520 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Albright v. Oliver, 510 U.S. 266 (1994) Alden v. Maine, 527 U.S. 706 (1999) Anderson v. Liberty Lobby, 477 U.S. 242 (1986)

................................................... 2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 38

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15, 23, 24

Associated Dry Goods Corp. v. Towers Financial Corp., 920 F.2d 1121 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Atlantic Mutual Insurance Co. v. Balfour Maclaine, 968 F.2d 196 (2d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Bay Mills Indian Committee v. Western United Life Insurance, 1998 U.S. Dist. LEXIS 20782 (W.D. Mich 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Bernheim v. Litt, 79 F.3d 318 (2d Cir. 1996)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41

Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Cannon v. University of Chicago, 441 U.S. 667 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Carell v. Shubert Organization, Inc., 104 F. Supp. 2d 236 (S.D. N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Carlson v. Tulalip Tribes, 510 F.2d 1337 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

iii

Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 126 S.Ct. 2021,2022 (2006) . . . . . . 2, 5, 6, 8 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Central Virginia Community College v. Katz, 126 S. Ct. 990 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 34, 36 Chambers v. TRM Copy Ctrs Corp., 43 F.3d 29 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Choctaw and Chickasaw Nations v. Seitz, 193 F.2d 456 (10th Cir. 1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 5, 6, 9 Comm'rs State Insurance Fund v. United States, 72 F. Supp. 549 (N.D. N.Y. 1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Concise Oil & Gas Partnership v. Louisiana Intrastate Gas Corp., 986 F.2d 1463 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ConnTech Development Co. v. University of Connecticut Education Properties, 102 F.3d 677 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 County of Monroe v. Florida, 678 F.2d 1124 (2d Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30 County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 20, 27, 38, 47 Cross v. Allen, 141 U.S. 528 (1891)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Deere v. State of New York, 22 F.2d 851 (N.D. N.Y. 1927), aff'd, 32 F.2d 550 (2d Cir. 1929)

. . . . . . . . . . . 16, 20

Delaware Nation v. Pennsylvania, 2004 WL. 3660518 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609 (1st Cir. 1996)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34

iv

Edison v. Reliable Life Insurance Co., 664 F.2d 1130 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 FDIC v. Giammettei, 34 F.3d 51 (2d Cir. 1994)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Faggiano v. Eastman Kodak Co., 378 F. Supp. 2d 292 (W.D. N.Y. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Flight Systems Inc. v. Electronic Data Systems, 112 F.3d 124 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Francis Oil & Gas Inc. v. Exxon Corp, 771 F.2d 873 (10th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Frew v. Hawkins, 540 U.S. 431 (2004) Fullilove v. Klutznick, 48 U.S. 448 (1980) Galliher v. Cadwell, 145 U.S. 368 (1892) Gardner v. Panama R.Co., 342 U.S. 29 (1951)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

................................................... 4

................................................... 4

Harris v. City of New York, 186 F.3d 243 (2d Cir. 1999)

............................................. 3

Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Hood v. Tennessee Student Assistance Corp., 541 U.S. 440 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 38, 39, 40

Ikelionwu v. United States, 150 F.3d 233 (2d Cir. 1998)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14

Ivani Contracting Corp v. City of New York, 103 F.3d 257 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Jackobson Shipyard, Inc. v. Aetna Casualty & Surety Co., 775 F. Supp. 606 (S.D. N.Y. 1991), aff'd, 961 F.2d 387 (2d Cir. 1992) . . . . . . . . . . . 14 Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Johnson v. Smithsonian Institution, 189 F.3d 180 (2d Cir. 1999)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43, 44, 45

Keweenaw Bay Indian Community v. Michigan, 11 F.3d 1341 (6th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Kickapoo Tribe v. Babbitt, 43 F.3d 1491 (D.C.Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Knight v. U.S. Fire Insurance Co., 804 F.2d 9 (2d Cir., 1986), cert. denied, 480 U.S. 932 (1987)

. . . . . . . . . . . . . . . . . . 15

Laker Airways Inc. v. British Airways, 182 F.3 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Lang v. Retirement Living Publ'g Co., Inc., 949 F.2d 576 (2d Cir.1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Mahaffey v. Alexander, 800 So. 2d 1284 (Ct. App. Miss. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Miner v. City of Glens Falls, 999 F.2d 655 (2d Cir. 1993)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vi

Mohegan Tribe v. Connecticut, 638 F.2d 612 (2d Cir. 1981), cert. denied, 452 U.S. 968 (1981) . . . . . . . . . . . . . . . . . 30 Mt. Hawley Insurance Co. v. Fred A. Nudd Corp., 382 F. Supp. 2d 404 (W.D. N.Y. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Narragansett Tribe v. Southern R.I. Land Development Corp., 418 F. Supp. 798 (D. R.I. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Nevada v. Hicks, 533 U.S. 353 (2001)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Oneida Indian Nation of New York v. County of Oneida, 719 F.2d 525 (2d Cir. 1983), aff'd on other grounds, 470 U.S. 226 (1985)

. . . . . 30, 36

Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 20, 46 Oneida Indian Nation v. County of Oneida, 434 F. Supp.527 (N.D. N.Y. 1977), aff'd, 719 F.2d 525 (2d Cir. 1983) Oneida Indian Nation v. State of New York, 649 F. Supp. 420 (N.D. N.Y. 1986), aff'd, 860 F.2d 1145 (2d Cir. 1988)

. . . . . . . . . . . . 46

. . . . . . . . 35

PaineWebber Inc. v. Cohen, 276 F.3d 197 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Pasco International v. Stenograph Corp., 637 F.3d 496 (7th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Peel v. Florida Department of Trans., 600 F.2d 1070 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Perez v. Ledesma, 401 U.S. 82 (1971)

................................................... 7

Pit River Home and Agricultural Cooperative Associate v. United States, 30 F.3d 1088 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

vii

Provident Tradesmens Bank & Trust v. Patterson, 390 U.S. 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 46 Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 R.C. Hedreen Co. v. Crow Tribal Housing Authority, 521 F. Supp. 599 (D. Mont. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Red Lake Band of Chippewas v. City of Baudette, 730 F. Supp. 972 (D.Minn. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Rodriguez v. City of New York, 72 F.3d 1051 (2d Cir. 1995) Roos v. Texas Co., 23 F.2d 171 (2d Cir. 1927)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250 (10th Cir. 2001)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Sakaogon Chippewa Community v. Wisconsin, 879 F.2d 300 (7th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43, 46 Seminole Tribe v. Florida, 517 U.S. 44 (1996)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 33, 34, 38

Seneca Nation of Indians v. New York, 383 F.3d 45 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Sologub v. City of New York, 202 F.3d 175 (2d Cir. 2000)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Sunamerica Corp. v. Sun Life Assurance Co., 77 F.3d 1325 (2d Cir. 1998.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Swierkiewicz v. Sorenma NA, 534 U.S. 506 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Textron Lycoming Reciprocating Engine Division v. United Automobile, Aerospace, Agricultural Implement Workers of America International Union, 523 U.S. 653 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

viii

The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Times Mirror v. Field & Stream, 294 F.3d 383 (2d Cir. 2002) Tindal v. Wesley, 167 U.S. 204 (1897)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14

................................................... 6

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 32 Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506 (2d Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Tri-Star Pictures, Inc. v. Leisure Time Pictures Industries, Inc., 17 F.3d 38 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11 Twombly v. Bell Atlantic, 425 F.3d 99 (2d Cir. 2005) United States v. Boylan, 265 F.2d 165 (2d Cir. 1920)

............................................. 2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Diebold, Inc., 369 U.S. 654 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 United States v. Lee, 106 U.S. 196 (1882) United States v. Mack, 295 U.S. 480 (1935)

................................................... 6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. RePass, 688 F.2d 154 (2d Cir. 1982)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. San Juan Bay Marina, 239 F.3d 400 (1st Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Universal Reinsurance Co. Ltd., v. St. Paul Fire and Marine Insurance Co., 312 F.3d 82 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

ix

Western Mohegan Tribe and Nation v. Orange County, 395 F.3d 18 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40 Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Woods v. Cloyd Miller Co., 333 U.S. 138 (1948) Worcester v. Georgia, 31 U.S. 515 (1832) Ex parte Young, 209 U.S. 123 (1908)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 26, 37, 38, 39, 40

Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Ysleta Del Surety Pueblo v. Laney, 199 F.3d 281 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

STATUTES AND LEGISLATIVE MATERIALS 1 Stat. 137 (1790) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 7 Stat.44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

25 U.S.C. 177 25 U.S.C. 233

25 U.S.C. 1774 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 28 U.S.C. 2415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 21

28 U.S.C. 2415(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 28 U.S.C. 2415(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Fed. R. Civ. P. Rule 8(c) Fed. R. Civ. P. Rule 8(f) ...................................................... 3 ......................................................2

Fed. R. Civ. P. Rule 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fed. R. Civ. P. Rule 12(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12 Fed. R. Civ. P. Rule 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3, 5, 12 Fed. R. Civ. P. Rule 19(a) Fed. R. Civ. P. Rule 19(b) Fed. R. Civ. P. Rule 56(c) Fed. R. Civ. P. Rule 56(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 . . . . . . . . . . . . . . . . . . . . . . . . . . 10

H.R. Rep. No. 375, 95th Cong., 1st Sess., 2-4,6-7 (1977) H.R. Rep. No. 807, 96th Cong., 2d Sess., 9 (1980) S. Rep. No. 569, 96th Cong., 2d Sess., 3 (1980)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

S. Rep. No. 1253, 92d Cong., 2d Sess. 2, 4-5 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 S. Rep. No. 1328, 89th Cong., 2d Sess., 3 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

OTHER AUTHORITIES Federal Rules Advisory Committee Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 45 Articles of Confederation, Article 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Black' Law Dictionary (7th ed. 1999) s ....................................... 4

Constitution of the United States of America, Article I . . . . . . . . . . . . . . . . . . . 26, 33, 34, 35, 36 Constitution of the United States of America, Article I, 8, cl. 11 Constitution of the United States of America, Article I, 10, cl. 3 Constitution of the United States of America, Article VII 30A Corpus Juris Secundum, Equity 94 . . . . . . . . . . . . . . . . . . . . 35 . . . . . . . . . . . . . . . . . . . . 35

. . . . . . . . . . . . . . . . . . . . . . . . . . . 18

....................................... 5

Edson R. Sunderland, "A Modern Evolution in Remedial Rights - The Declaratory Judgment, 16 Mich. L. Rev. 69 (1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Elizabeth L. Hisserich, "The Collision of Declaratory Judgments and Res Judicata," 48 UCLA L. Rev. 159 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 xi

Felix Cohen, Handbook of Federal Indian Law (1942)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Henry L. McClintock, Handbook of the Principles of Equity, 2d ed. . . . . . . . . . . . . . . . . . . . . . . 5 Knox to President Washington, July 7, 1789, American State Papers, I Indian Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Moore's Federal Practice 3d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Secretary of War Henry Knox to President George Washington, July 7, 1789, American State Papers, I Indian Affairs (1832) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 The Vices of the American Political System, Rutland, et al, eds., 9 Papers of James Madison 348 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 The Speech of Cornplanter, Half-Town, and the Great Tree, Chiefs of the Seneca Nation, to the President of the United States, January 10, 1791, American State Papers, I Indian Affairs (1832) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

xii

INTRODUCTION The fundamental question posed by the motions of the State of New York and the other Defendants is whether the court system of the United States will at last permit the Onondaga Nation to present evidence that federal laws, treaties and the United States Constitution were violated when the State took the Nations lands. The Nation is prepared to prove at an evidentiary hearing that it has never been guilty of laches. The historic question presented to this Court is whether the Onondaga Nation will be permitted access to a United States court and a fair opportunity to prove its claims in any court. To this day, the Nation has never been afforded that simple opportunity for justice that others in the United States take for granted. The Nation opposes the motions to dismiss because this suit cannot be dismissed as a matter of law under Fed. R. Civ. P. Rule 12(b)(6). Second, the Nation argues that the Court should exclude the extraneous matters on which Defendants rely and deny the motions without converting them to motions for summary judgment. If, however, the motions are converted to motions for summary judgment, the Nation then shows that there are many genuine issues of material facts about the issues of laches, acquiescence, impossibility and disruptiveness. Finally, the Nation establishes that the State Defendant should not be excused from answering for its misconduct on the grounds of sovereign immunity, and that, even if the State is dismissed from the action, it is not an indispensable party and the action may proceed against the other Defendants. I. DEFENDANTS 12(b)(6) MOTIONS SHOULD BE DENIED BECAUSE THEY IMPROPERLY CHALLENGE FACTS THAT MUST BE TAKEN AS TRUE FOR PURPOSES OF THE MOTION Both motions argue that this suit must be dismissed on the grounds of laches, acquiescence, and impossibility, and they apparently argue that Cayuga and Sherrill create a new

and special rule that disruptive and possessory claims must be dismissed as a matter of law. Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266 (2d Cir. 2005), cert. denied, 126 S.Ct. 2021,2022 (2006); City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005). On the contrary, as discussed below, laches, acquiescence and impossibility are affirmative defenses that cannot be raised on a 12(b)(6) motion, and Cayuga and Sherrill created no such rule requiring dismissal of this suit as a matter of law. Moreover, the allegations of the First Amended Complaint (hereafter Complaint), which must be accepted as true on a 12(b)(6) motion, plainly show that the Onondaga Nation did not unreasonably delay in filing this suit and that the Defendants are not prejudiced by its timing. This lawsuit is neither possessory nor disruptive. Given the Federal Rules simplified standard for pleading, [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Swierkiewicz v. Sorenma NA, 534 U.S. 506, 514 (2002) (internal quotation omitted). This must be understood together with Rule 8(f)s command that [a]ll pleadings shall be so construed as to do substantial justice. In deciding a motion to dismiss under 12(b)(6), a court must accept all of the factual allegations of the complaint as true and in a light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 267 (1994); Twombly v. Bell Atlantic, 425 F.3d 99, 106 (2d Cir. 2005). Because the factual allegations of the complaint must be accepted as true on a motion under Rule 12(b)(6), an affirmative defense will rarely warrant dismissal. Only if the applicability of an affirmative defense is clear on the face of the complaint may a complaint be dismissed on that basis. Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236, 263 (S.D. N.Y. 2000); see also Flight Systems Inc. v. Electronic Data Systems, 112 F. 3d 124, 127 (3d Cir. 1997).

Under these standards, it is virtually impossible to conclude that the applicability of laches, acquiescence, or impossibility is clear on the face of the complaint. Indeed, the Complaint alleges in paragraphs 45-48 that the Onondaga Nation promptly protested New Yorks illegal takings of its homelands and that the lapse of time was not unreasonable. Accepting these allegations as true as the Court must, it is plain that laches and acquiescence cannot be said to be clear on the face of the complaint. The same is true for the defense of impossibility. That is an extremely limited defense which, not surprisingly, is not specifically addressed by Defendants. There is no showing whatever that it applies and bars the claims at issue or that it is clear on the face of the complaint. The State attempts a half-hearted argument by saying, [T]he Onondaga do not allege that they have sought . . . to assert sovereignty over the subject lands. Memorandum of Law in Support of the State of New York Defendants Motion to Dismiss at 22 (hereafter State Memo). But that avails the State nothing, because a plaintiff is not required in the complaint to anticipate or negative defenses. Harris v. City of New York, 186 F.3d 243, 251 (2d Cir. 1999). Fed. R. Civ. P. Rule 8(c) requires that affirmative defenses, such as laches, must be set forth affirmatively. Further, Rule 12 requires that such affirmative defenses be raised in a pleading, not in a Rule 12(b) motion. Thus, the equitable defenses of laches, acquiescence and impossibility are not appropriate subjects for a Rule 12(b)(6) motion to dismiss, because they are fact-based, affirmative defenses that raise matters outside the complaint. Laches is a factual question that requires the court to balance the equities by reference to the facts and circumstances peculiar to each case. Tri-Star Pictures, Inc. v. Leisure Time Pictures Industries, Inc., 17 F. 3d 38, 44 (2d Cir. 1994). To prove the defense of laches, the Defendants must show that (1) Plaintiff inexcusably delayed in taking action; and (2) defendants would be prejudiced by the

delay. Ikelionwu v. United States, 150 F. 3d 233, 237 (2d Cir. 1998); Ivani Contracting Corp v. City of New York, 103 F.3d 257, 259 (2d Cir. 1997); Galliher v. Cadwell, 145 U.S. 368, 373 (1892). [W]where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief. Gardner v. Panama R.Co., 342 U.S. 29, 31 (1951). Defendants reliance on acquiescence as an affirmative defense suffers from the same infirmity. Acquiescence is defined as tacit or passive acceptance, implied consent to an act whereby binding legal effect is given to silence and inaction. Blacks Law Dictionary at 23 (7th ed. 1999). In the Second Circuit, acquiescence is an affirmative, equitable defense, almost exclusively raised in trademark cases, and the defendant bears the burden of showing all three of its elements: The defense requires proof of three elements: (1) [plaintiffs] active . . . representat[ion] that it would not assert a right or a claim; (2) the delay between the active representation and assertion of the right was not excusable; and (3) the delay caused the defendant undue prejudice. Sunamerica Corp. v. Sun Life Assurance Co., 77 F.3d 1325, 1334 (2d Cir. 1998.); Times Mirror v. Field & Stream, 294 F.3d 383, 395 (2d Cir. 2002). The Defendants have failed even to discuss any of these three elements of the affirmative defense of acquiescence. Much less have they met their factual burden. Defendants do not claim, nor could they, that the Onondaga Nation actively represented that it would not assert the rights raised in this action Any speculation to the contrary is simply unfounded. In sum, the Defendants raise factual matters not contained in the Complaint and that are specifically contradicted by its allegations. Defendants improperly ask this Court to make assumptions or findings that are not supported by the record and that are entirely incorrect. We remind the Court that laches and acquiescence are, above all, equitable defenses, and equity

demands fairness. [A] court of equity is a court of conscience; . . . . [It] acts in furtherance of justice, and in accordance with the principles of justice and fair dealing; . . . . 30A Corpus Juris Secundum, Equity 94 at 292. It cannot be fair to dismiss this suit on grounds of delay and acquiescence without ever giving the Nation a chance to prove these charges are false. The maxim [e]quity will not suffer a wrong without a remedy, should be applied here. Henry L. McClintock, Handbook of the Principles of Equity, 2d ed. at 52. It would be fundamentally unfair to deny the Nation any justice, while permitting New York State and others to benefit from the States violations of federal law and treaties. For these reasons, the motions to dismiss cannot be granted under Rule 12(b)(6) on the basis of laches, acquiescence or impossibility. II. CAYUGA AND SHERRILL DO NOT REQUIRE THE DISMISSAL OF THIS SUIT AS A MATTER OF LAW The Defendants appear to take the view that these decisions create a new and special rule requiring dismissal of this suit for a declaratory judgment as a matter of law on the face of the Complaint. The decisions in Cayuga and Sherrill lead to no such conclusion. A. Cayuga Did Not Rule That Laches Can Be Applied to Bar an Indian Land Claim Without an Evidentiary Hearing and Factual Findings

In finding that the Cayugas claim was barred by laches, Judge Cabranes relied quite pointedly on the factual findings of the District Court, noting that it had held evidentiary hearings on the question of laches and had made specific findings on the issue. The courts opinion points out that the District Court in fact concluded, after an extensive trial, that laches had in fact occurred and that the District Court applied that finding of laches in its decision on remedies. 413 F.3d at 268, 277, 279-280. These distinct points in the opinion show that the Court did not rule nor even imply that laches could be determined without an evidentiary hearing on the factual issues. It would have been novel and unprecedented for the Court to find that the

affirmative defense of laches could be determined without any evidentiary record as Defendants here propose. Defendants arguments ignore the Circuit opinions references to the hearings and findings on laches in the District Court. This reading of the Cayuga decision is in accord with the Supreme Courts statement in Sherrill that it leaves Oneida II undisturbed. 544 U.S. 197, 221(discussing County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985)). B. Cayuga Applies Only to Possessory Actions

The decision in Cayuga states many times that the rule of that case applies to actions that are possessory and disruptive. 413 F.3d at 274-275, 277-278. Indeed, the opinion never once states that the decision in that case is to apply to any other kind of case, only those cases that are possessory and disruptive. This lawsuit, by contrast, is not a possessory action but a suit for a declaratory judgment only. This lawsuit is not disruptive, but is the very archetype of a nondisruptive action. The Nation has not sought possession, ejectment or damages for loss of possession. The law recognizes a distinction between a claim to establish title and a claim to recover possession, and the elements of proof for each are distinct one from the other. Justice OConnor recognized this distinction in Idaho v. Coeur dAlene Tribe of Idaho, 521 U.S. 261, 291 (1997). Justice OConnor gave two examples in which the Supreme Court had distinguished between possession of property and title to property, United States v. Lee, 106 U.S. 196 (1882) and Tindal v. Wesley, 167 U.S. 204 (1897). She summarized the holdings of those cases as recognizing that a court could find that the officials had no right to remain in possession, thus conveying all the incidents of ownership to the plaintiff, while not formally divesting the State of its title. Coeur dAlene, supra at 290. There is no jurisprudential reason why the converse is not also true; the State could be divested of its title but allowed to remain in possession, as the Onondaga Nation has requested

here. As a result, a declaratory judgment recognizing the Nations title does not necessarily include a right to possession. It is thus not necessary for the court to determine whether the Nation has a possessory right in order to adjudicate its claim that the States acquisition of Nation land violated the Trade and Intercourse Act. In the Declaratory Judgement Act, Congress created a remedy that is above all noncoercive and not disruptive. Declaratory judgments by nature are not coercive. A declaratory judgment is merely a declaration of legal status and rights; it neither mandates nor prohibits state action. Perez v. Ledesma, 401 U.S. 82, 124 (1971). A declaratory judgment is appropriate when it will serve a useful purpose in clarifying and settling legal relations. Concise Oil & Gas Partnership v. Louisiana Intrastate Gas Corp., 986 F.2d 1463, 1471 (5th Cir. 1993). Though a declaratory judgment may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but it is not contempt. Id. at 125-126. The purpose of the Declaratory Judgment Act is to provide a means for recognizing the plaintiffs right even though no immediate enforcement is sought. Textron Lycoming Reciprocating Engine Division v. United Automobile, Aerospace, Agricultural Implement Workers of America Intl Union, 523 U.S. 653, 660 (1998). Declaratory judgments have a special efficacy in settling rights to land without stirring up legal hostilities. . . . Brief of Professor Edwin M. Borchard on Declaratory Judgments, Senate Committee on the Judiciary, 65th Cong., 3d Sess. at 52 (1919). As such, a declaratory judgment action is ideally suited for establishing the proposition that the State of New York violated the Trade and Intercourse Act in acquiring Onondaga land between 1788 and 1822, and that those land transactions are void. A declaratory judgment, if granted, will be useful in clarifying and settling the Nations relationship with the State of New York with regard to the

land at issue. The Nation has long insisted that these land rights issues should be resolved through government-to-government negotiations and through action by the political branches of the federal and state governments, in cooperation with the Nation. A declaratory judgment would advance and aid such processes tremendously. Cayuga is relevant only to actions that are possessory and disruptive. It does not apply to actions that seek only non-possessory declaratory relief. The Defendants thus mis-read Cayuga. In Cayuga, the Second Circuits divided ruling was limited to: hold[ing] that the doctrine of laches bars the possessory land claim presented by the Cayugas here. 413 F.3d 266, 277 (emphasis added). Likewise, the Non-State Defendants incorrectly say that the Second Circuit concluded that land claims seeking a declaration of title must be dismissed as inequitable in light of the profoundly disruptive consequence of such a declaration 200 years after dispossession. Memorandum of Law in Support of Non-State Defendants Motion to Dismiss (hereafter NonState Memorandum) at 5. The Non-State Defendants reference 413 F.3d at 274. However, all of the discussion on page 274 is about the possessory remedies which were sought by the Cayugas; those remedies are not sought by the Onondagas here. There is no discussion of title. III. CAYUGA IS INAPPLICABLE BECAUSE THIS IS NOT A DISRUPTIVE LAWSUIT The opinion in Cayuga was particularly concerned about the disruptiveness of the claims for ejectment against an entire defendant class, claims that were maintained, the opinion points out repeatedly, for some 19 years in the district court and on appeal. 413 F.3d at 271, 274, 277278. The perceived impact of that broad possessory claim for ejectment was central to the Courts reasoning and its holding. Id. at 274-275

This suit is not similarly disruptive. The past 25 years have shown that the filing and prosecution of the claims have not had a demonstrable effect on the marketability of land titles in the claim areas. On the contrary, real estate markets appear to have been largely unaffected, with title insurance companies continuing to write policies, with an Indian claim exception. Real estate sale prices have not been affected by the Indian claims to any noticeable or measurable degree. Declaration of Joseph J. Heath 27-29 (Heath Declaration). Another example of the absence of disruption is the case of the Seneca Nation of New Yorks ownership of the lands that comprise the City of Salamanca, New York. When the courts ruled the leases invalid for failure to obtain federal approvals, Congress authorized further leasing of the Nations land. The Nation then leased its land to hundreds of non-Indian residents for 99 years, and in 1991, when the leases were about to expire, the parties entered into an agreement to facilitate the negotiation of new leases. Congress implemented the agreement. 25 U.S.C. 1774 et seq. This result was accomplished with minimal disruption of the local real estate market and economy. Heath Declaration 47-50. The State says regarding laches that Sherrill ruled that: [All a]boriginal land claims that have a disruptive effect . . . are subject to dismissal, on a motion to dismiss, based upon wellrecognized equitable principles. State Memorandum at 17. The State cites to page 214 of the decision. The State mis-states the Sherrill decision in general and that page reference in particular. Further, the assertion that the Onondagas suit is disruptive is not supported by the record. The question of disruptiveness is a factual issue and one for which Defendants have the burden of proof. As shown below, there is no factual record established by Defendants, and Plaintiff has submitted evidence that shows there are many material issues of fact concerning the allegation of disruptiveness.

IV.

THE APPLICATION OF LACHES TO THE CLAIMS OF THE ONONDAGA NATION CONFLICTS WITH CONGRESS JUDGMENT THAT SUCH CLAIMS SHOULD BE PERMITTED TO GO FORWARD The application of laches to bar the Onondagas case would be particularly inappropriate

because Congress has precisely defined the circumstances under which Indian land cases should be treated as time-barred. In 1982, Congress adopted the Indian Claims Limitation Act, which established a system for the final resolution of pre-1966" Indian land claims. County of Oneida v. Oneida Indian Nation, 470 U.S. at 242. The Act established a relatively short limitations period within which the United States and Indian tribes could bring damages claims based on contract and tort. 28 U.S.C. 2415(a) and (b). Pertinent here, the Act also declared that [n]othing herein shall be deemed to limit the time for bringing an action to establish the title to, or the right of possession of, real or personal property. 28 U.S.C. 2415(c). The claim of the Onondaga Nation falls precisely within the express terms of this provision, as a claim to establish title to real property. The legislative history of 28 U.S.C. 2415 confirms the conclusion that Congress intended to permit Indian land claims to establish title to be prosecuted without regard for any limitations period, including laches. Two features of that history are pertinent here. First, Congress was aware of the existence of so-called ancient Indian land claims in New York State. Second, there is abundant evidence that Congress intended to preserve such claims. See, e.g., S. Rep. No. 1328, 89th Cong., 2d Sess., 3 (1966); S. Rep. No. 1253, 92d Cong., 2d Sess. 2, 4-5 (1972); H.R. Rep. No. 375, 95th Cong., 1st Sess., 2-4,6-7 (1977); H.R. Rep. No. 807, 96th Cong., 2d Sess., 9 (1980); S. Rep. No. 569, 96th Cong., 2d Sess., 3 (1980). Of particular significance is the fact that Congress adopted the 1982 Limitations Act eight years after the U.S. Supreme Court held in Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) that suits like the

10

Onondagas state claims arising under federal law. Had Congress intended that such claims be barred, it would not have subsequently enacted the 1982 Act expressly permitting them to be brought. Laches within the term of the statute of limitations is no defense at law. United States v. Mack, 295 U.S. 480, 489 (1935); see also Cross v. Allen, 141 U.S. 528 (1891) (laches will not bar a suit in equity to foreclose a mortgage so long as the statute of limitations has not run on the underlying debt). The Second Circuit follows this rule. United States v. RePass, 688 F.2d 154, 158 (2d Cir. 1982) ([l]aches is not a defense to an action filed within the applicable statute of limitations). Here, Congress determination that no limitations period applies to Indian land claims to establish title reflects a legislative value judgment which strikes the appropriate balance between the interests promoted by the statute and the countervailing interests of repose. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-464 (1975). This Courts application of laches to the claims of the Onondaga Nation would, therefore, be a violation of Congress will as expressed in the statute. County of Oneida, 470 U.S. at 244; United States v. Oakland Cannabis Buyers Coop., 532 U.S. 483, 497 (2001) (Courts of equity cannot, in their discretion, reject the balance that Congress has struck in a statute.) The Onondaga Nation was justified in relying on Congress determination that no limitations statute or common law doctrine barred its claims. Laches requires more than the mere passage of time; only unreasonable delays may be considered in determining whether it is fair to bar the claim. The existence of a congressional determination that these kinds of claims should be allowed to proceed is a special circumstance that weighs in favor of a conclusion that the Onondaga Nation acted reasonably in the timing of this suit. Tri-Star Pictures, Inc. v.

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Leisure Time Pictures Industries, Inc., 17 F.3d at 44 (laches is a factual question that requires consideration of all circumstances peculiar to each case). V. DEFENDANTS FACTUAL ALLEGATIONS SHOULD BE EXCLUDED FOR PURPOSES OF THESE MOTIONS, AND THESE MOTIONS SHOULD NOT BE CONVERTED TO MOTIONS FOR SUMMARY JUDGMENT Where Defendants assert a defense under Rule 12(b)(6), as here, and matters outside the pleadings are presented and not excluded by the Court, the the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. Fed. R. Civ. P. Rule 12(b). The Defendants, by raising the defenses of laches, acquiescence and impossibility, and the element of disruptiveness have alleged many facts which are not in the Complaint and which are not true. The facts the Court is asked to assume or judicially notice are the supposed lack of action by the Nation, alleged delay by the Nation, the supposed availability in the past of a remedy for the Nation, the unreasonableness of the Nations actions, alleged prejudice to all the Defendants, and clean hands on the part of all Defendants, among other issues. These allegations of fact are set out in detail in the Plaintiffs Response to the Defendants Statement of Material Facts, which accompanies this filing. Defendants have asserted these facts without any supporting affidavits or documentary evidence. This Court should exclude the Defendants factual allegations outside the Complaint for two reasons: (1) Defendants have not characterized their motions as motions for summary judgment, and (2) the motions do not meet the threshold requirements for a motion for summary judgement: a showing of uncontested facts that Plaintiff is guilty of unreasonable delay resulting in prejudice to Defendants, that Plaintiff acquiesced in the taking of its lands, and that this lawsuit is disruptive, among other allegations. Defendants have not even attempted to support their factual allegations with any kind of evidentiary showing in an affidavit. The declarations

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and documentary evidence submitted by Plaintiff show overwhelmingly the existence of genuine issues of material fact, as fully discussed below. As a result, summary judgment must in any event be denied. VI. IF THE MOTIONS ARE TREATED AS SUMMARY JUDGMENT MOTIONS, THEY SHOULD BE DENIED BECAUSE DEFENDANTS HAVE NOT MET THEIR BURDEN OF PRODUCTION If the Court decides to convert the motions into motions for summary judgment, then summary judgment must be denied on the ground that movants have not met their burden of production and on the ground that there are many genuine issues of fact concerning laches, acquiescence, impossibility, and disruptiveness that can only be resolved after discovery and an evidentiary hearing. Rule 56(c), Fed. R. Civ. P., provides in pertinent part: [Summary] judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party must make a prima facie showing that the standard for summary judgment has been met. Rodriguez v. City of New York, 72 F.3d 1051 (2d Cir. 1995); FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994); Mt. Hawley Ins. Co. v. Fred A. Nudd Corp., 382 F.Supp. 2d 404, 409 (W.D. N.Y. 2005); Faggiano v. Eastman Kodak Co., 378 F. Supp.2d 292, 298 (W.D. N.Y. 2005). Movants must demonstrate in some detail that there is no genuine issue of material fact and that the movants are entitled to a judgment as a matter of law. See Moores Federal Practice 3d at 56136 (emphasis added); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).

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Where, as here, the movant bears the burden of proving laches, acquiescence and other affirmative defenses, the required prima facie showing is relatively higher. Professor Moore states: [I]f the movant has the burden of persuasion on an issue, the movant must make a stronger claim to summary judgment by introducing supporting evidence that would conclusively establish movants right to a judgment after trial should nonmovant fail to rebut the evidence. Moores Federal Practice 3d, 56 135; see, Edison v. Reliable Life Ins. Co., 664 F.2d 1130, 1131 (9th Cir. 1981); Jackobson Shipyard, Inc. v. Aetna Cas. & Sur. Co., 775 F.Supp. 606, 609615 (S.D. N.Y. 1991), affd, 961 F.2d 387 (2d Cir. 1992). Defendants have the burden of proof to establish the defense of laches. Natl R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121 (2002); Ikelionwu v. United States, 150 F.3d 233, 237 (2d Cir. 1998); Times Mirror Magazines, Inc. v. Field & Stream Licenses Co., 294 F.3d 383, 395 (2d Cir. 2002) (acquiescence). Further, the standard for satisfying the initial burden of production is to be interpreted in light of the requirement that the court must view all reasonable inferences drawn from the facts in the light most favorable to the nonmoving party (the Plaintiff here). Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Sologub v. City of New York, 202 F.3d 175 (2d Cir. 2000). The Defendants have not made the prima facie showing that is required, especially taking into account the Defendants ultimate burden of persuasion on the issues of laches, acquiescence and other affirmative defenses. Movants have made virtually no attempt to demonstrate the lack of factual issues about the existence of any actual delay, about the availability or non-availability of any remedy in the past, about the reasonableness of the Nations conduct, nor about the question of actual prejudice to any of the Defendants. Defendants rely on only one fact that is

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not in dispute, a fact that may be judicially noticed: the passage of some 200 years. But this is not legally sufficient to establish the defense of laches or any other defense. For this reason alone summary judgment must be denied. VII. SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE ARE SUBSTANTIAL AND GENUINE ISSUES OF MATERIAL FACT Plaintiff has submitted detailed Declarations by four eminently qualified historians, Anthony F.C. Wallace, Lindsay G. Robertson, Robert E. Bieder, and J. David Lehman, as well as Declarations by Tadadaho Sid Hill of the Onondaga Nation and by Joseph J. Heath and Robert T. Coulter. Each of these Declarations states specific facts demonstrating that there are many genuine issues of material fact and demonstrating that there is substantial evidence on which this Court could base a judgment in favor of Plaintiff on the issues of laches, acquiescence, impossibility and disruptiveness. The Supreme Court has established the opposing party' burden: the nonmovant must s respond with "substantial evidence" sufficient to support a reasonable jury' verdict. s [The] inquiry performed is the threshold inquiry of determining whether there is the need for a trial - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, 477 U.S. at 250, 252-253. This test has been applied in this Circuit. Lang v. Ret. Living Publg Co., Inc., 949 F.2d 576 (2d Cir.1991); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir., 1986), cert. denied, 480 U.S. 932 (1987). The opposing party must provide evidence of "specific facts" which articulate and illustrate the existence of a genuine issue requiring trial. Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989).

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The Onondaga Nation has submitted seven Declarations containing extensive evidence of many specific, material facts, more than sufficient to sustain the trier of fact in finding for the Nation on the issues of laches, acquiescence, impossibility, and disruptiveness. The evidence submitted by the Nation shows that the Nation has at all times acted with extraordinary promptness and persistence in raising its claims that its lands were taken illegally, but despite its efforts the Nation has never been afforded the opportunity to present this evidence in court. The need for a trial of all the issues relating to laches, acquiescence, impossibility and disruptiveness could not be clearer. The specific facts established by the Nation in the Declarations are also set forth in detail in Plaintiff' Response to Defendants' s Statement of Material Facts, submitted pursuant to Local Rule 7.1(a)3. The Onondaga Nation has never delayed in filing this suit, because from 1788 until 1974 the Nation had no opportunity to prosecute such a suit. The federal courts had no jurisdiction to entertain such suits until 1974. Declaration of Professor Lindsay Robertson, 44-49 (Robertson Declaration). Even so, the Onondaga Nation joined with the other Nations of the Haudenosaunee to press a federal lawsuit in 1924 as a test case to determine whether the claims could be prosecuted in the federal courts. Declaration of Robert E. Bieder (Bieder Declaration) 41- 55. New York State argued that an Indian nation or tribe does not have capacity to bring such a suit, and the Court of Appeals held that the federal courts lack jurisdiction over such suits. Robertson Declaration 48. Deere v. State of New York, 22 F.2d 851 (N.D. N.Y. 1927), aff'd, 32 F.2d 550 (2d Cir. 1929). New York law provided that Indian nations lacked capacity to sue generally in state courts in the absence of authorizing legislation, and no such legislation was enacted. Roberston

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Declaration 37-39. Thus, there has never been any possibility of bringing an action in state court. Roberston Declaration 41-43. The Onondaga Nation and the Haudenosaunee as a whole were dislocated and temporarily dispersed after the Revolutionary War, and New York State, between 1790 and 1822, took advantage of this geographical separation to make fraudulent deals with certain Onondaga individuals who were in no way authorized to represent the Nation. The Onondaga Chiefs, then at Buffalo Creek, protested to New York, but the State continued its purported purchases of Onondaga Nation land, all in violation of the Trade and Intercourse Acts. Declaration of Anthony F. C. Wallace (Wallace Declaration) 24-27, 29, 31-44; Declaration of Professor J. David Lehman (Lehman Declaration) 7,10,12 (treaty of 1788); 15,19, 21, 28, 52 (Treaty of 1793); 58, 59 (Treaty of 1795); Wallace Declaration 31, 34 (Treaty of 1788); 41, 42 (Treaty of 1793); and 43, 46, 54. New York State also knew that its purported purchases of Onondaga Nation land were made contrary to the long-established practices and laws of the Onondaga Nation and the Haudenosaunee. Wallace Declaration 5, 19, 45. The United States officially informed the State of New York that congressional approval was required under the Trade and Intercourse Act for the acquisition of Indian land and that transactions lacking such approval were void, but the State nonetheless obtained Onondaga land in knowing violation of that requirement. Lehman Declaration 22, 39, 40; Wallace Declaration 54. It is clear from this record that the State has acted wrongfully and does not have "clean hands" to invoke equitable defenses. Although no judicial relief was possible, the Onondaga Nation Chiefs immediately protested, repeatedly and strongly, against New York' illegal and deceitful acquisitions of s Onondaga Nation land. Lehman Declaration 5, 7, 10, 14, 30, 60; Wallace Declaration 31,

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42. The Onondaga Nation and the Haudenosaunee also appealed promptly to the United States for help in dealing with New York' illegal transactions. Lehman Declaration 24, 27, 28, 32; s Wallace Declaration 55. The protests and appeals of the Onondaga Nation and the Haudenosaunee resulted in repeated assurances that New York' transactions in violation of the s Trade and Intercourse Acts were void and that the United States confirmed the Nation' land s rights. Lehman Declaration 35, 37, 41; Wallace Declaration 4, 57, 58, 63. These facts are set out in detail in Plaintiff' Response to Defendants' s Statement of Material Facts 34-36. New York State deliberately deceived the Onondagas with whom it dealt about the transactions of 1788, 1793, and 1795, telling them that the lands were merely leased and not sold. Lehman Declaration 45-58; Wallace Declaration 33. As a result, Onondaga leaders and citizens of the Nation have continuously believed and understood that most of the Nation' s lands were leased and still owned by the Nation. Declaration of Tadadaho Sidney Hill 37 (Hill Declaration); Wallace Declaration 37. Though resort to the courts was not possible in any event, the Haudenosaunee, including the Onondaga Nation, had a centuries-old practice of dealing with disputes diplomatically through government-to-government negotiations. Wallace Declaration 9; Hill Declaration 27, 29. The land issues of the Haudenosaunee during this period were issues of major political importance to be settled by negotiation between the legitimate representatives of sovereign governments. Wallace Declaration 47. Article VII of the Treaty of Canandaigua of 1794 (7 Stat.44), a treaty still in force today, reflects this method of resolving disputes. Hill Declaration 29, 30, 31. New York State encouraged the Onondaga Nation, to negotiate its differences with the State about land rather than to take other measures. Wallace Declaration 4, 10.

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Thus, during this period of 1790 to 1830, the Onondaga Nation and the Haudenosaunee acted vigilantly and strongly to protest and seek redress for the taking of the Nation' lands. They s were persistent in their efforts despite the fact that judicial remedies were not available and both the Federal and State governments were unresponsive to their protests and appeals. They did everything that could be done. But they were soon to enter an even darker period. Efforts to remove the Onondagas and other Nations of the Haudenosaunee and settle them west of the Mississippi River began early in the century and continued strongly until about 1845. These efforts were almost entirely unsuccessful, and the Onondaga Nation remained on its traditional lands. Wallace Declaration 64-70. The State policy and, later, federal policy turned to allotment, the practice of taking the land of Indian nations and distributing it among the members or families of the Indian nation. New York State adopted allotment legislation in 1849. Congress passed the Dawes Act in 1887. The Onondagas rejected allotment, because it threatened the Nation' land base and because, without land, the Nation' sovereignty was at risk. s s Bieder Declaration 5-19. From 1849 to 1914, the Nation was compelled to resist and oppose bill after bill seeking the allotment of the Nation' lands, and overwhelming political sentiment s favored allotment of the remaining Onondaga land. Id. The Boylan case, decided by the federal District Court in 1919, ruled that transfers of Indian land in New York without compliance with the Trade and Intercourse Act were void. United States v. Boylan, 265 F.2d 165 (2d Cir. 1920). In response, the New York legislature created the New York State Indian Commission to examine this question, and this Commission gave the Onondaga Nation a fresh opportunity to express its claims to its lands. Bieder Declaration 20, 40. The Onondaga leaders clearly stated their land claims and also demonstrated that they had not acquiesced in New York' taking of the Nation' lands. Bieder s s

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Declaration 39. New York State and the public were yet again put on notice of these land claims. Bieder Declaration 36-38. The Commission' report concluded that the Six Nations s held title to about half of New York State. Bieder Declaration 37-38. The Commission helped to motivate a fresh effort to take legal action on the Nation' s land claims and the claims of the Haudenosaunee. This effort led to the Deere case described above. Though the Deere case ended the possibility of court action on the Nation' claims, the s Onondaga Nation and the Haudenosaunee persisted in their efforts, making repeated appeals in congressional hearings for United States support. Bieder Declaration 51-63. A powerful and detailed written Petition by the Haudenosaunee, stating the land claims of the Onondaga Nation and other Iroquois Nations, was submitted to Congress and printed in the hearing record in 1929 and again in 1930. Bieder Declaration 56-58, 63. Again in 1948, Onondaga Nation Chiefs stated their land claims against New York in U.S. Senate Hearings. Bieder Declaration 64-70. After the Oneida decision in 1974, the Onondaga Nation as part of the Haudenosaunee began efforts to assert its claims to its illegally taken lands and to seek a negotiated resolution. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); Declaration of Robert T. Coulter (Coulter Declaration) 6-10. It was not until 1985, that the courts resolved some of the remaining substantial issues and established that Indians had a cause of action arising from a violation of the Act, and that there was no statute of limitations on such claims. County of Oneida v. Oneida Indian Nation, 470 U. S. 226 (1985). Additional questions remained, such as appropriate remedies, state immunity, and liability for land takings prior to the Trade and Intercourse Act. The Nation monitored these developments, waiting to see whether a federal law suit could succeed. Coulter Declaration 6-11.

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The Onondaga Nation and the Haudenosaunee Lands Committee sought negotiations and at the same time worked to stave off a number of grave threats to the Nation' land rights. They s fought to overcome or limit the federal power to "extinguish" Indian land title without compensation and the "plenary power" of Congress over Indian lands. Coulter Declaration 18-29. The Onondaga Nation, between 1976 and 2005, was compelled to litigate in case after case to protect its land rights from extinguishment or adverse decisions. As a part of the Haudenosaunee, the Nation defended its land interests in five major federal cases, exhausting its financial and legal resources. Coulter Declaration 30-55. Nevertheless it sought to take action on the Nation' particular land rights and sought federal help in order get legal assistance s and other needed assistance. Efforts to get financial assistance and efforts to find other legal resources failed. Coulter Declaration 58-62. Beginning in 1989 and continuing to the present time the Nation asked repeatedly, in writing and in many meetings, for the United States to provide litigation support for the Nation, that is, to file suit against the State of New York in support of the Nation' land rights. The s United States has never made a decision on that request. The Nation waited for this crucial assistance for years, believing that the United States would file suit on behalf of the Nation as it had done in nearly every one of the previous Trade and Intercourse Act suits in New York. Coulter Declaration 62-71. Throughout this period the Nation was aware that there was no statute of limitations on Indian lawsuits for title to land, and, understandably relied on the assurances provided by the act of Congress, 28 U.S.C. 2415, and by the Supreme Court' decision in Oneida II. Coulter s Declaration 81-83.

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In 1988, the Nation renewed its efforts to negotiate a resolution with the State of New York. It was not until 1998 that a brief period of negotiations with the State was begun. Coulter Declaration 72-83. The Governor' office insisted that further negotiations could not be s conducted until the Nation filed its suit in court. Coulter Declaration 83; Hill Declaration 33. This lawsuit is not disruptive, and that is due in part to the communications campaign that the Nation began in 1995 to build public understanding about the Nation and its land rights. Coulter Declaration 87-90; Hill Declaration 22, 23, 40. Responses to the Nation' suit have s been largely positive and supportive, particularly with regard to the Nation' goals of s environmental clean-up and rehabilitation of the land and waters. There have been no substantial disruptions. Heath Declaration 8-34. Relations with the surrounding community are harmonious, and nothing suggests that this would be disrupted by a declaratory judgment in favor of the Nation. Heath Declaration 35-50. The Nation seeks a just resolution that will be non-disruptive. Hill Declaration 19-22, 27. The Nation is primarily concerned with the damage to the lands caused by the corporate defendants through dumping of toxic wastes and mining. Heath Declaration 51-58. The Onondaga Nation maintains a strong demographic, cultural, legal and political presence in the lands that were taken by the State of New York, and this goes far to show that the Nation has not acquiesced in the taking and that a declaratory judgment in the Nation' favor s would cause little or no disruption. The majority of all Onondagas continue to live in the aboriginal territory of the Nation and continue to use and go upon these lands, including some of the lands taken by New York, for hunting, fishing, and medicinal and cultural plant gathering. Hill Declaration 4, 11-14. Onondaga Lake is particularly important to the Nation as the place where the Haudenosaunee was formed. Hill Declaration 13. The federal, state and local

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governments have acknowledged the continuing ties of the Onondaga Nation to many areas within the land that is the subject of this action by consulting with the Nation with regard to the impacts caused by development projects on cultural resources significance to the Nation. Heath Declaration 37-39. The historical and factual evidence set forth in specific detail and supported by historical documentation in the seven Declarations shows that practically all of the allegations and assumptions that Defendants rely upon are incorrect and are controverted by substantial evidence. In making the determination whether a trial or evidentiary hearing is warranted,

the Court must view the pleadings and submissions, particularly the declarations, in the light most favorable to the party opposing summary judgment. Anderson v. Liberty Lobby, 477 U.S. at 255 (evidence of nonmovant is to be believed and all reasonable inferences are to be drawn in his favor); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Miner v. City of Glens Falls, 999 F.2d 655 (2d Cir. 1993). In assessing the summary judgment record, a court is required to resolve all ambiguities and draw all factual inferences in favor of the party opposing summary judgment. Chambers v. TRM Copy Ctrs Corp., 43 F.3d 29(2d Cir. 1994). The determination of historical facts, especially, is the proper function of the trier of fact, not a question to be decided on a motion for summary judgment. See William W. Schwarzer, Alan Hirsch & David J. Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 455 (1992). The disputed issues of fact are principally issues of historical fact, including whether the Nation acted reasonably in protesting repeatedly to New York State and to the United States, whether the Nation had an opportunity to bring a lawsuit at an earlier time, whether the Nation was justified in its understanding that the Syracuse area had been leased rather than sold, whether the Nation ever acquiesced in New York States takings of its lands,

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and whether New York State was on notice that its conduct was in violation of federal law and was dishonest and fraudulent toward the Onondaga Nation, among other factual issues. The determination of such historical facts and making the necessary inferences from the evidence presented are not matters to be decided by summary judgment. Anderson v. Liberty Lobby, 477 U.S. at 255. The determination of the many issues relevant to the defenses of laches, acquiescence and impossibility demands a full evidentiary hearing to present the full body of historical evidence and the testimony of expert witnesses. The Nation cannot fully and fairly present its case against laches, acquiescence, and impossibility without the testimony of expert witnesses, without discovery to obtain other crucial information and documents, and without some additional time to complete research in the National Archives and other repositories. The Nation is entitled to an opportunity to present all its evidence and to have a full evidentiary hearing at which all the evidence on these factual issues can be weighed and evaluated by the Court. If the Court finds that the evidence presented in opposition to summary judgment leaves any doubt about the existence of genuine issues of material facts, then the Nation requests, at is has done in separate motion papers, a continuance pursuant to Rule 56(f), Fed. R. Civ. P., to permit discovery and to permit further research on the historical issues relating to laches, acquiescence, impossibility and disruptiveness. The evidence presented at this time is only a portion of what could be adduced if Plaintiff had an opportunity for discovery and further research.

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VIII. THE ONONDAGA NATIONS SUIT IS NOT BARRED BY THE SOVEREIGN IMMUNITY OF NEW YORK STATE The State argues that its sovereign immunity from suit, as confirmed by the 11th Amendment to the Constitution, precludes this Court from exercising jurisdiction over the Onondaga Nations claims. In asserting that its Eleventh Amendment immunity requires dismissal of the Nations suit, the State unashamedly attempts to evade all responsibility for its unlawful actions in obtaining the Nations land and shift that responsibility entirely to the nonstate defendants.1 The Nations Complaint states facts that show a decades-long pattern of bad faith by the State in acquiring Indian land in violation of federal law and through deceitful means. Complaint 34, 39, 43, 53. These material facts are deemed true for purposes of this motion. Atlantic Mut. Ins. Co. v. Balfour Maclaine, 968 F.2d 196, 198 (2d Cir. 1992). Though the State has profited enormously from its duplicitous conduct, it now seeks to avoid a judicial determination of the legality of its actions. Rather, than confront and resolve this dispute on its merits, the State retreats behind the veil of alleged 11th Amendment immunity. Manifestly, this not a case where the King Can Do No Wrong, as the fictional rationale for the sovereign immunity doctrine originally had it. Commrs State Ins. Fund v. United States, 72 F. Supp. 549, 552 (N.D. N.Y. 1947). Nothing in the Supreme Courts 11th Amendment immunity jurisprudence requires this Court to deny the Onondaga Nation its day in court. On the contrary, well-established principles of the sovereign immunity doctrine provide ample basis for the exercise of this Courts jurisdiction. The States motion should be denied.

The Onondaga Nation formally requested that the State waive its immunity so that the Nations claims could be determined in the interest of fairness toward the other defendants and in the interest of justice. Complaint at 8. The States only response is this motion.

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Three reasons are sufficient to deny the States motion: 1) because it seeks only a declaratory judgment, by definition a non-coercive remedy, the Onondaga Nations suit does not directly implicate the state dignity concerns protected by the Eleventh Amendment; 2) Congress, pursuant to its War Powers authority under Article I of the Constitution, has abrogated the States immunity in the Trade and Intercourse Act; and 3) the Nations claims against Governor George Pataki may proceed under the doctrine of Ex parte Young, 209 U.S. 123 (1908) and its progeny. A. The Relief Sought by the Onondaga Nation Does Not Impermissibly Intrude on the Dignity of New York State and Is Not, Therefore, Barred by the Eleventh Amendment

The twin purposes of the Eleventh Amendment are to protect the treasuries of the states from unconsented judgments and to protect the dignity of the states in the federal system. Federal Maritime Commn v. South Carolina State Ports Auth., 535 U.S. 743 (2002). The Supreme Court has established that these purposes are the prime guide for determining the reach of the Eleventh Amendment. Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 47 (1994). Here, the first purpose is not implicated, because the Onondaga Nation does not seek money damages. The second purpose is not implicated because a non-coercive declaration of title is not the kind of affront to the dignity of the state that would call for a strict application of the Eleventh Amendment. For these reasons, the narrow scope of the relief the Onondaga Nation seeks should inform this Courts determination of the questions discussed infra, whether Congress has abrogated New York States immunity in the Trade and Intercourse Act, and, alternatively, whether the suit may proceed on the basis of Ex parte Young. Suits requesting specific relief such as the recovery of property or monies, ejectment from land, or an injunction directing or restraining the States actions plainly implicate immunity principles because of the coercive nature of that relief. Larson v. Domestic & Foreign 26

Commerce Corp., 337 U.S. 682, 688 (1949). The Onondaga Nations declaratory judgment action, by contrast, seeks neither damages nor injunctive relief. In fact, it asks for no coercive relief at all. The suit does not seek ejectment, and thus the State would not be dispossessed. Rather, the Nations suit requests only a declaratory judgment that the transactions by which the State acquired the Nations land are unlawful and that the title of the Onondaga Nation is confirmed. Complaint, Prayer for Relief A, B. A judgment in favor of the Onondaga Nation would do no more than declare the rights of the parties to the subject land. There is less need for 11th Amendment protection when the suit does not seek to subject the state to the coercive process of judicial tribunals. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). The entry of judgment would in legal effect confirm Onondaga title to certain lands to which the State has record title. Confirmation of bare fee title, however, would not disturb the States possession nor require the State to take affirmative steps divesting itself of any state interest.2 The Onondagas do not ask this Court to cancel the States deeds to the subject land, or to reformulate the States record title, or to execute any documents transferring the land to the Nation, to nullify any State jurisdiction, or invalidate any state regulatory statutes.3

The United States claims to hold underlying fee title to virtually all Indian land in the country, with the Indian nations holding a right of occupancy. County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 234 (1985). Except where the United States seeks to extinguish the Indian right of occupancy, these distinct classifications of legal interests in land harmoniously co-exist. Just as the United States may assert title to lands possessed by Indian tribes, so here the Onondaga Nation may assert title to lands possessed by the State of New York. The Onondaga Nation has renounced any intention to seek to dispossess the State of New York, and there is considerable legal doubt about whether an Indian nation holding naked fee title would have that authority in any event. In the nature and scope of relief sought, this case closely resembles the kind of in rem actions that traditionally are not barred by sovereign immunity principles. See, e.g., California v. Deep Sea Research, Inc., 523 U.S. 491, 506 (1998) (sovereign immunity bars in rem actions only when it is necessary to invade the possession of the sovereign under process of the court.); Hood v. Tennessee Student Assistance Corp., 541 U.S. 440, 45-451 (2004) ( in rem actions do not implicate state sovereignty
3

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A declaratory judgment is ideally suited to address the historic wrong alleged in this action. As merely a declaration of legal status and rights, a declaratory judgment neither mandates nor prohibits state action. Perez v. Ledsma, 401 U.S. 82, 1214 (1971). The purpose of the Declaratory Judgment Act was to provide the means for clarifying legal relations and recognizing the plaintiffs rights even though no immediate enforcement was asked. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-672 (1950). A lawsuit seeking declaratory relief only is a cooperative proceeding, in which the court merely assists the parties to settle their own differences by stating to them the rules of law which govern them. Edson R. Sunderland, A Modern Evolution in Remedial Rights The Declaratory Judgment, 16 Mich. L. Rev. 69, 76 (1917). A declaratory judgment action serves a peacekeeping function and asks the court to resolve a legal and/or factual question while leaving the parties to abide by it without the court having either to determine how much one party owes another or to oversee one party under an injunction. Elizabeth L. Hisserich, The Collision of Declaratory Judgments and Res Judicata, 48 U.C.L.A. L. Rev. 159, 162 (2000). From the perspective of the Onondaga Nation, the issuance of a declaratory judgment here represents the first step toward an amicable resolution of the Nations land rights disputes with the State of New York. This suit is the beginning of a process to achieve a just resolution of its claims. This action does not offend the dignity of the sovereignty of the State of New York to the degree required for a strict application of the Eleventh Amendment. This fact should inform the analysis of the two questions that follow.

to the same degree as other kinds of jurisdiction).

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B.

Pursuant to its Constitutional War Powers Authority, Congress Has Abrogated New York States Immunity in the Trade and Intercourse Act

Congress has abrogated New Yorks immunity in the Trade and Intercourse Act pursuant to its constitutional war powers authority. The first step in the analysis is whether Congress has unequivocally expressed its intent to abrogate immunity, and the second step is whether Congress has acted pursuant to a valid exercise of power. Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996) (internal quotations omitted). Both parts of the analysis are satisfied here. 1. Congress Has Unequivocally Abrogated New York States Immunity In the Trade and Intercourse Act

The Trade and Intercourse Act provides that no acquisition of Indian land from any Indian nation shall be of any validity in law or equity unless the transaction is made by treaty or convention entered into pursuant to the Constitution. 25 U.S.C. 177. The analysis of congressional intent in the Act must take into account its contemporary legal context, and it should be assumed that Congress was familiar with that context when it enacted the statute. Cannon v. University of Chicago, 441 U.S. 667, 698-699 (1979); Central Virginia Community College v. Katz, 126 S.Ct. 990, 996, n.3 (2006). Here, the terms of the Act and its contemporary legal context show unequivocally that Congress intended that Indian nations be able to enforce the Act against the States if federal court jurisdiction was otherwise available. For 11th Amendment purposes, it was not necessary for Congress to provide for federal court jurisdiction in the language of the Act itself. The Second Circuit has held that immunity abrogation rules adopted after the 11th Amendment was enacted should not be applied to statutes enacted before the Amendment. County of Monroe v. Florida, 678 F.2d 1124, 1133 (2d Cir. 1982) (It was not necessary for the Federal Extradition Act to expressly abrogate 11th Amendment immunity because it was enacted in 1793, before the adoption of the Amendment).

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The Acts focus on state liability for violations was sufficient for the court to conclude that Congress intended to abrogate state immunity. The same principle applies here. By its express terms the Trade and Intercourse Act applies to any state, whether having the right of preemption to such lands or not. 1 Stat. 137 (1790). By declaring certain Indian land transactions void, Congress necessarily contemplated that the issue of voidness as against the states under the criteria of the Act would at some point be litigated. See, e.g., Oneida Indian Nation of New York v. County of Oneida, 719 F.2d 525, 535 (2d Cir. 1983), affd on other grounds, 470 U.S. 226 (1985) (relying on congressional intent to find implied private right of action under the Trade and Intercourse Act); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18-19 (1979). As the Supreme Court has observed, [a] person with the power to avoid a contract ordinarily may resort to a court to have the contract rescinded. . . . Id., 444 U.S. at 18. Thus, it is doubtful that Congress in 1790 believed that the states immunity could defeat this customary legal incident of voidness.4 Without the ability to overcome the states immunity, Indian nations, as the principal beneficiaries of the Act, would have been unable to enforce its terms against one of the gravest threats to the security of their lands. Mohegan Tribe v. Connecticut, 638 F.2d 612 (2d Cir. 1981), cert. denied, (Act applies to states, not just to land within Indian country). In other words, absolute state immunity would have made the Act largely meaningless, a result that Congress did not intend. See, e.g., County of Monroe v. Florida, 678 F.2d at 1134 (2d Cir. 1982). State

The fact that the federal courts were not open to Indian nations at that time is not relevant to this analysis, because it is Congress perception of the legal context that is determinative, not whether its perception was correct. See Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 378, n.61 (1982).

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immunity would frustrate the principal purpose of the Act, to protect the rights of Indians to their property. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 664 (1979). The Trade and Intercourse Acts were enacted in a legal climate in which unfair and fraudulent state treaties to obtain Indian lands in defiance of the national governments authority threatened the peace of the United States. The Constitution nationalized congressional authority over Indian affairs in the Constitution in part as a response to uncontrolled state land transactions with Indian nations during the Articles of Confederation period. James Madison included among the vices of the Articles of Confederation government the inability of the confederal authorities to restrain Georgias treaties with Indian nations, which risked a general Indian war in the South. The Vices of the American Political System, Rutland, et al, eds., 9 Papers of James Madison 348 (1986). Secretary of War Henry Knox, who first proposed to President Washington a national law to regulate Indian land transactions, based the rationale for such a statute on the pressing need to control land deals as a means to secure the peace: It would reflect honor on the new Government, and be attended with happy effects, were a declarative law to be passed, that the Indian tribes possess the right of the soil of all lands within their limits, respectively, and that they are not to be divested thereof, but in consequence of fair and bona fide purchases, made under the authority, or with the express approbation, of the United States. As the great source of all Indian wars are disputes about their boundaries, and as the United States are, from the nature of the government, liable to be involved in every war that shall happen on this or any other account, it is highly proper that their authority and consent should be considered as essentially necessary to all measures for the consequences for which they are responsible. No individual state could, with proprietary, complain of invasion of its territorial rights. . . . Each individual state, indeed, will retain the right of pre-emption of all lands within its limits, which will not be abridged; but the general sovereignty must possess the right of making all treaties, on the execution or violation of which depend peace or war.

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Secretary of War Henry Knox to President George Washington, July 7, 1789, American State Papers, I Indian Affairs, 52-53 (1832). Madisons and Knoxs views about the rationale for the first Trade and Intercourse Act are perhaps the best evidence of congressional intent, because there is almost no legislative history, and certainly none to contradict their views, to guide this determination. Moreover, the absence of legislative history makes it particularly appropriate to assume that Congress was aware of this rationale, and acted on that premise. Congress failure to explicitly consider state immunity is not inconsistent with an intent to require that the Act be enforced notwithstanding such immunity. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. at 18 (Congress failure to expressly provide a right of action is not necessarily inconsistent with an intent to make such a remedy available). Here, the absence of any discussion of state immunity in the legislative history is explained by the fact that in all likelihood Congress assumed such immunity would not be an obstacle to the Acts enforcement, in light of the paramount national goal of maintaining peace with the Indian nations. The Indian nations understanding of the purpose of the Trade and Intercourse Act is consistent with the Governments. After President Washington explained the new law to the chiefs of the Seneca Nation, Chief Cornplanter responded that the Indians were nonetheless distrustful of any emissary sent to address land issues, because the agents that have come amongst us, and pretended to take care of us, have always deceived us whenever we sold lands; both when the King of England and when the States have bargained with us. They have by this means occasioned many wars, and we are therefore unwilling to trust them again. The Speech of Cornplanter, Half-Town, and the Great Tree, Chiefs of the Seneca Nation, to the President of the United States, January 10, 1791, American State Papers, I Indian Affairs 143.

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In light of this legal context, it is inconceivable that Congress would have believed, in the face of grave risks of an Indian war, that the Trade and Intercourse Act would not be enforceable against the states, by whatever means available. The stakes were simply too high to justify a regulatory scheme that left the application and enforceability of the Act to the whims of the individual states whose conduct occasioned the need for the Act in the first place. Under these circumstances, Congress did not intend the states immunity to bar enforcement of the Act. 2. The Trade and Intercourse Act is a Valid Exercise of Congress Authority Under the War Powers Clause of the Constitution

The second part of the Seminole Tribe test is satisfied as well. Congress authority to enact the Trade and Intercourse Act may be sustained under the War Powers Clause of Article I of the Constitution. Although it is generally assumed Congress acted pursuant to the Indian Commerce Clause when adopting the Act, the legislative history is silent as to Congress understanding regarding the source of its power. In any event, the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise. Woods v. Cloyd Miller Co., 333 U.S. 138, 144 (1948). Congressional power may rest on more than one constitutional foundation, and for this reason, the Supreme Court does not require Congress to articulate its reasons for enacting a statute. FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993); Fullilove v. Klutznick, 48 U.S. 448, 476 (1980). Congress has authority under its War Powers to abrogate New York States immunity to suits to enforce the Trade and Intercourse Act. Although the issue has not been addressed in this Circuit, the First and Fifth Circuits have ruled that Congress has War Powers authority to abrogate state immunity. Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609 (1st Cir. 1996) (Veterans Reemployment Rights Act, which authorized suit against a state, is a legitimate

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exercise of Congress war powers); Peel v. Florida Dept. of Trans., 600 F.2d 1070 (5th Cir. 1979) (same). Seminole Tribe is not to the contrary. Although that case suggests in dicta that Congress may not abrogate state immunity through the exercise of any of its Article I powers, 517 U.S. at 73, subsequent Supreme Court opinions have clarified that other provisions of Article I may be sufficient to support congressional abrogation. See, e.g., Central Virginia Community College v. Katz, 126 S.Ct. 990 (2006). In that case, the Court ruled that the Bankruptcy Clause power under Article I was sufficient to support Congress authorization of suits against states to avoid alleged preferential transfers in bankruptcy proceedings. The Court refused to follow the Article I dicta in Seminole Tribe because the the point now at issue was not fully debated. Id. at 995. Similarly, the First Circuit refused to apply Seminole Tribe because its holding that Congress lacks power under the Commerce Clause to abrogate state immunity does not control the War Powers analysis. Diaz-Gandia, 90 F.3d at 616, n.9. Central Virginia Community College provides the analytical framework for the War Powers determination in the Trade and Intercourse Act context.5 Relying on the history of the Bankruptcy Clause and legislation enacted immediately after the Constitution was adopted, the Court concluded that the States acquiesced in a regulatory scheme that subordinated state sovereign immunity to the paramount goal of a national, uniform bankruptcy system. The history and implementation of the War Powers Clause mirrors that of the Bankruptcy Clause in the goal of lodging an unfettered federal power in Congress to the complete exclusion

Alden v. Maine, 527 U.S. 706, 731 (1999) likewise confirms that Congress may abrogate state immunity where there is compelling evidence that the states were required to surrender [their immunity] to Congress pursuant to the constitutional design.

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of the States. Although the Articles of Confederation in Article 9 granted the Continental Congress the sole and exclusive right and power of determining on peace and war, Congress ability to maintain peace with Indian nations was continually threatened by State encroachments on that authority. See, e.g., Oneida Indian Nation v. State of New York, 649 F. Supp. 420, 441 (N.D. N.Y. 1986), affd, 860 F.2d 1145 (2d Cir. 1988) (the Southern states were violating Indian peace treaties and the Articles of Confederation by engaging in war with the Indians). To remedy these problems in the new government, the Constitution explicitly granted expansive war powers to the federal government and prohibited state power in the same area. Article I, 8, cl. 11; Article I, 10, cl. 3. In the plan of the convention, authority over matters of war and peace was made a paramount national concern under Congress exclusive Article I powers.6 It is reasonable to conclude that state immunity was subordinated to that goal, and that the states, by ratifying the Constitution, implicitly agreed to that result. Congress was exercising its war powers in enacting the Trade and Intercourse Act. Chief Justice John Marshall explicitly tied the Act to the constitutional war and peace power: [The Constitution] confers on Congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions. The shackles imposed on this power, in the confederation, are discarded. (emphasis in original) Worcester v. Georgia, 31 U.S. 515, 562 (1832). There is ample contemporaneous evidence that the impetus for the Act was the need to prevent the outbreak of

Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991), does not preclude a finding that in the War Powers Clause the states acquiesced in the subordination of state immunity to the overriding national goal of a uniform regulation of military affairs. The War Powers Clause was not considered by the Court in that case, which dealt more generally with the question of whether the status of Indian tribes in the Constitution deprived states of their immunity for tribal suits.

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hostilities caused by states and private individuals obtaining Indian land by fraudulent means. Secretary of War Henry Knox urged that the law was needed in order to lay the foundation for justice and peace. Knox to President Washington, July 7, 1789, American State Papers, I Indian Affairs at 53. Put simply, a major purpose of the Act was to avoid war with Indian nations, who have constantly had their jealousies and hatreds excited by the attempts to obtain their land. Oneida Indian Nation of New York v. County of Oneida, 719 F.2d 525, 534, n.10 (2d Cir. 1983) (quoting Secretary of War Henry Knox to Governor Blount of North Carolina). Noted Indian law scholar Felix Cohen confirms this conclusion, writing that the war powers underlay much of the federal power exercised over Indian land and Indians during the early history of the Republic. Felix Cohen, Handbook of Federal Indian Law at 93 (1942). One court outside this Circuit has held that Congress did not have authority under the War Powers Clause to abrogate state immunity in the Trade and Intercourse Act. Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281 (5th Cir. 2000). That case should not be followed here, however. Unlike the suit here, that case sought to dispossess the State and was, therefore, unequivocally a suit against the state within the 11th Amendment. In addition, that case was decided before Central Virginia Community College v. Katz, 126 S.Ct. 990 (2006), which clarified that Congress had authority under those Article I powers that could be read to subordinate state immunity to the need for federal uniformity in the area of regulation at issue. Central Virginia Community College calls into question the continuing validity of the Ysleta Del Sur Pueblo ruling. Moreover, the court in Ysleta Del Sur Pueblo did not consider the extensive evidence of the war powers rationale for the adoption of the Trade and Intercourse Act. For that reason too, that case is not persuasive authority here.

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Congress purpose in adopting the Trade and Intercourse Act would be nullified if the State of New York were allowed to retain land titles that are made void ab initio by the express terms of the Act. It would be anomalous indeed if the States 11th Amendment immunity, which arose several years after the Act was adopted, were permitted to thwart Congress intent to protect Indian lands. All of the available historical evidence points to the opposite conclusion: Congress intended to abrogate the States immunity in the Act, and Congress was exercising its constitutional war powers authority in doing so. C. Governor George Pataki Is Amenable to Suit Under the Doctrine of Ex parte Young

This Court has subject matter jurisdiction over the Onondaga Nations claims against Governor George Pataki under the doctrine of Ex parte Young, 209 U.S. 123 (1908). The complaint named the Governor as a defendant in his individual capacity and in his official capacity as Governor. Complaint 10. The complaint alleges that he asserts title to certain state lands in violation of the Trade and Intercourse Act, and is, therefore, acting beyond the scope of this lawful authority. Id. The Onondagas suit seeks a finding that the Governors assertion of title is a continuing violation of federal law. The complaint requests a declaratory judgment, a form of prospective relief. Thus, a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks prospective relief leads to the conclusion here that the suit against the Governor may proceed under Ex parte Young. Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645 (2002) (internal citation omitted). Frew v. Hawkins, 540 U.S. 431, 437 (2004) (To ensure the enforcement of federal law, however, the Eleventh Amendment permits suits for prospective injunctive relief against state

37

officials acting in violation of federal law.); Alden v. Maine, 527 U.S. 706, 747 (1999) (the Ex parte Young doctrine includes claims for prospective declaratory relief). Although the Supreme Court has narrowed somewhat the scope of the doctrine, the Court has not questioned its continuing validity. Idaho v. Coeur dAlene Tribe, 521 U.S. 261, 269 (1997). For example, the Court has ruled that courts should hesitate to apply Ex parte Young where Congress has intended to limit the remedy through the prescription of a detailed remedial scheme for the enforcement against the State of a statutorily-created right. Seminole Tribe, 517 U.S. at 74. The Trade and Intercourse Act contains no such detailed remedial scheme. The Supreme Court has found that the Act did not establish a comprehensive remedial plan for dealing with violations of Indian property rights. County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 237, n. 4 (1985). As a result, the Act falls far short of the Seminole Tribe standard for the inapplicability of Ex parte Young. Defendant State of New York argues that Coeur dAlene Tribe precludes the application of the Ex parte Young doctrine to the Onondagas claims against the Governor because the suit implicates the States ownership and jurisdiction over the subject lands. State Memorandum at 14. This argument should be rejected because it is based on an erroneous premise about the nature and scope of the Onondagas suit, that it seeks to divest the State of possession and of its regulatory jurisdiction over the subject land. This case is distinguishable from Coeur dAlene in two critical respects: first, the Onondaga Nation does not seek to invalidate all statutes and ordinances purporting to regulate the lands as the Coeur dAlene Tribe did; and second, the Nation does not seek to eliminate altogether the States regulatory power nor establish that the State has no right to possession, as the Coeur dAlene Tribe did. 521 U.S. at 289 (OConnor concurring). It was these critical features of the relief requested by the Coeur dAlene Tribe that

38

made that suit the functional equivalent of an action to quiet title. Id. The Onondaga Nations suit, which seeks limited declaratory relief only, is far less invasive. No special sovereignty interests of the State of New York are implicated. Coeur dAlene Tribe is inapplicable for the additional reason that, unlike Idaho, the courts of the State of New York are not available to hear the Onondaga Nations federal law claims.7 Justice Kennedys approach recognizes the special obligation of the federal courts to ensure the supremacy of federal statutory and constitutional law when a state forum is not available. 521 U.S. at 270. As a result, when there is no state forum, Ex parte Young has special significance. Id. That is the case here. In 1952, Congress stripped New York State courts of any jurisdiction they may have had by adopting 25 U.S.C. 233. That statute provides that the grant of civil jurisdiction to the State over Indian reservations shall not be construed as conferring jurisdiction on the courts of the State of New York in civil actions involving Indian land claims arising before September 13, 1952, the effective date of the statute. The Onondaga Nation claim plainly falls within the terms of that statute, and the State courts are not, therefore, available to hear it. The States reliance on Western Mohegan Tribe and Nation v. Orange County, 395 F.3d 18 (2d Cir. 2004) is equally misplaced. The Tribe in that case sought to have the subject land restored to it through an order of ejectment, a remedy that is identical to the relief the Coeur dAlene Tribe sought. Coeur dAlene Tribe, therefore directly control[led] the outcome. 395

The unavailability of a state forum is one factor in Justice Kennedys case-by-case approach to applying the Ex parte Young doctrine. 521 U.S. at 269-280. It is not the controlling approach for the Court, however. 521 U.S. at 298 (dissenting opinion of Justice Souter acknowledging that Justice OConnors concurrence is the controlling view of the applicability of the doctrine to land rights suits against state officials). This factor is nonetheless analyzed here because it is another way in which the case is distinguishable from the Onondagas suit.

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F.3d at 23. As the Second Circuit noted, the Tribe in Western Mohegan was seeking a declaration that in legal effect required a finding that the lands in question are not even within the regulatory jurisdiction of the State. 395 F.3d at 23. By contrast, the Onondaga Nation seeks no such relief. As explained above, Coeur dAlene Tribe is inapplicable, and therefore Western Mohegan is as well. Because the requirements for an Ex parte Young suit are satisfied, the Onondaga Nations suit is undoubtedly the most convenient, the most comprehensive and the most orderly way in which the rights of all the parties can be properly, fairly and adequately passed upon. Ex parte Young, 209 U.S. at 166. IX. THE DISPUTE BETWEEN THE NATION AND THE COUNTY, CITY AND CORPORATIONS SHOULD BE DETERMINED AS A MATTER OF EQUITY AND GOOD CONSCIENCE IN THE ABSENCE OF A PREDECESSOR IN THE CHAIN OF TITLE TO THE LAND, THE STATE OF NEW YORK The Onondaga Nation has endeavored for nearly two centuries to re-establish its rights to its aboriginal lands. Having finally been granted the ability to use the courts of the United States, and having observed that the law has developed so as to create this right of action, the Nation seeks now to determine that the Defendants claims to title to the disputed lands fail because the Defendants predecessor in the chain of title, New York State, acquired the title intentionally without compliance with federal and state law. The land which is the subject of this suit is, and has at all times been the property of the Onondaga. Complaint at 12.8 The purported conveyances of the Onondaga land to the State of New York, Defendants predecessor in title, were achieved only by the States misconduct in violation of state and federal law. Id. at 25-43. Defendants Onondaga County, City of

As noted, the facts of its complaint are deemed to be true at this stage of these proceedings. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).

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Syracuse, Honeywell International, Clark Concrete, Valley Realty Development, Hansen Aggregates, and Trigen Syracuse Energy Corporation, claim to hold title to the land by reason of transfers ultimately from the State; by their use and occupancy, they have polluted and degraded that land. Id. at 11-16. These Defendants now seek to prevent the Onondaga Nation from litigating in this court its title to the land occupied and degraded by them. They do so by asserting that a previous claimant to the title of the lands they now claim to own, the State of New York, cannot be joined in the case. If this previous alleged title-holder may not be joined, these remaining Defendants claim that their interests with respect to the interests of the Onondaga Nation, cannot be determined. The Defendants mischaracterize the very nature of this dispute. The crux of the dispute between the Nation and the Non-State Defendants is that each claims title to the same lands. Both equity and good conscience dictate that it would be improper to deny the Nation the opportunity to resolve that dispute simply because a predecessor in title is not a party. Fed. R. Civ. P. Rule 19(b). The Rule requires simply that persons needed for a just adjudication of the action be joined. Id.; see also, Advisory Committee Notes (1966 Amendment).9 The determination of the identity of those persons is a pragmatic one. Rule 19 Advisory Committee Notes ,The Amended Rule. A simple, pragmatic analysis reveals that the State is not needed for a just adjudication of disputes over lands to which the non-State Defendants claim title.

The Committee Notes state that the decision on persons needed for a just adjudication should be based on pragmatic considerations which should be controlling, citing Roos v. Texas Co. 23 F.2d 171 (2d Cir. 1927). Advisory Committee Notes. The revised rule uses the word indispensable only in a conclusory sense, that is, whether after the pragmatic analysis required by the rule to identify an absent party indispensable to a just adjudication, it is determined to be preferable that the case be dismissed. Id.

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A.

The State of New York Is Not Needed for Just Adjudication of Disputes Between the Onondaga Nation and Those Who Currently Claim Title to the Nations Lands

An entity should be joined if (1) in its absence complete relief cannot be accorded among the remaining parties, or (2) the absent party claims an interest relating to the subject of the action and is so situated that the disposition of the action may either (i) impair or impede [its] ability to protect that interest or (ii) leave any of the remaining parties subject to a substantial risk of suffering multiple or inconsistent obligations. Rule 19(a); Johnson v. Smithsonian Institution, 189 F.3d 180, 188 (2d Cir. 1999) (the fact that evidence may be required from an absent party, does not make it necessary to join them); ConnTech Development Co. v. University of Connecticut Education Properties, 102 F.3d 677, 682 (2d Cir. 1996) (not necessary to join an entity which is not party to the agreement in dispute when relief may be granted to parties who remain in the action). The dispute between the Onondaga Nation, on the one hand, and (to use one Defendant as an example) Honeywell International on the other hand, has to do with whether Honeywell or the Onondaga Nation has title to certain land. The State of New York need not be a party to this litigation in order to achieve a just adjudication of that dispute; the State of New York is not a party to the deed which Honeywell relies upon for its claim of title. ConnTech Development, supra; Sakaogon Chippewa Community v. Wisconsin, 879 F.2d 300, 304 (7th Cir. 1989) (if Tribe has good claim to land, it should not be barred from proceeding by an inability to sue an entity remotely involved in dispute); ABKCO Music, Inc., v. La Vere, 217 F.3d 684, 687 (9th Cir. 2000)(persons who have relinquished their interests in property or whose interests are not actually affected by the suit are not indispensable); R.C. Hedreen Co. v. Crow Tribal Housing Authority, 521 F.Supp. 599, 609 (D. Mont. 1981)(entity who assigned all rights in contract, no

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longer has any interest to protect). As Judge Posner of the Seventh Circuit stated in a dispute where a Tribe sought to reclaim land to which the United States had once claimed title: To exaggerate slightly (because the U.S. appears to be in occupation of some of the land . . .), it is as if every time someone claimed that someone else was encroaching on his property he would have to sue not only the alleged encroacher (here Exxon) but also the alleged encroacher' predecessors in title right back to King James or Lord Baltimore s (here the U.S.). So far as can be determined from an utterly inadequate record, the relationship of the U.S. to the Indians' controversy with Exxon and the other occupiers of the land in derogation of the Indians' alleged occupancy rights is that of a predecessor in title (to Exxon), no more. Sokaogon Chippewa v. Wisconsin, 879 F.2d at 304. The Non-State Defendants assert that the States interest in the treaties by which it unlawfully claimed Onondaga land, makes the State a necessary party. Non-State Defendants Memorandum at 12. The Defendants miss the point. A resolution of the dispute over title between a corporate defendant and the Nation will not bind New York State; the State may defend its treaties at some other time, if it so chooses, without being subject to this Courts ruling. Provident Tradesmens Bank & Trust v. Patterson, 390 U.S. 102 at 109-111 (a judgment is not res judicata as to, or legally enforceable against a nonparty).10 In addition, the fact that evidence concerning the State of New Yorks fraudulent and conniving acts in securing those treaties will be introduced in this proceeding similarly does not mandate the States presence as a party. Johnson v. Smithsonian, 189 F.3d at 188 (the question

The cases cited by the Defendants all involve disputes between parties to the challenged transactions. Keweenaw Bay Indian Community v. Michigan, 11 F.3d 1341 (6th Cir. 1993)(Indian Tribe challenged claims of two absent Tribes to fishing rights in the same lake; absent tribes were indispensable); Kickapoo Tribe v. Babbitt, 43 F.3d 1491 (D.C.Cir. 1995)(the state, the absent party, was a party to the gaming compact at issue in the dispute); Bay Mills Indian Comm. v. Western United Life Ins., 1998 US Dist. LEXIS 20782 (W.D. Mich 1998)(the absent Tribe was indispensable because it had an equally strong claim to title to the land in dispute); Seneca Nation of Indians v. New York, 383 F.3d 45 (2d Cir. 2003)(the Senecas challenged an easement held by New York; the State obviously, is an essential party to a dispute over the validity of its easement). The Defendants do not claim that New York holds title jointly with Honeywell, or the County of Onondaga, or any other Non-State defendant; the State is simply not a party to these disputes.

10

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of whether an entity should be a party is quite different from the problems associated with obtaining evidence from such an entity). The State of New York has not appeared and asserted that its interests cannot be protected without its presence as a party. Johnson v. Smithsonian, 189 F.3d at 189. In fact, the State has sought affirmatively to be dismissed from this case. See also, United States v. San Juan Bay Marina, 239 F.3d 400, 407 (1st Cir. 2001) (absent partys decision not to intervene indicates it does not deem its interests threatened). The State claims no title interest in lands of the county, city or corporations.11 And there is no risk to Honeywell or any of the other title claimants that they may be subject to multiple or inconsistent claims. 12 Thus here, as in Johnson, it is clear that just adjudication of the disputes between Onondaga and the

The Defendants claim that the States sovereign interests are in jeopardy. They rely for this claim on a motion filed in a federal court in Pennsylvania, which the Defendants mischaracterize and refer to as a holding by a court. Non-State Defendants Memorandum at 14, citing Motion to Dismiss Complaint filed by landowners in a case entitled Delaware Nation v. Pennsylvania, not published in an official reporter, and found at 2004 WL 3660518. A motion filed by a party is not a holding by a court. The Onondaga Nation chooses to assume that the defendants mischaracterization was negligent, and not intentional. The only other case cited by Defendants on this curious point has nothing to do with sovereign interests. Carlson v. Tulalip Tribes, 510 F.2d 1337 (9th Cir. 1975) found that the United States was a necessary and indispensable party to a boundary dispute involving land held in trust by the United States. Id. at 1339. That was an actual holding and was hardly surprising, but is of no relevance here. Without citation to any authority, and based wholly on their own speculation, the Defendants state a fear that they will be subject to inconsistent claims of sovereignty if the court declares that the defendants claims to title are void. Speculation about possible events which may or may not occur in the future is not a legal basis for dismissal of this litigation. Francis Oil & Gas Inc. v. Exxon Corp, 771 F.2d 873, 877 (10th Cir. 1981)(the risk of incurring inconsistent obligations must be substantial, a real likelihood rather than a theoretical possibility). The scope of sovereignty is a complex question, one well beyond the scope of this motion; it suffices to say that federal law does not recognize the right of any Indian nation to exercise the full authority of a sovereign over lands to which it holds bare fee title, i.e., lands which are not held in trust for the Nation or otherwise considered to be within Indian Country. See generally, Alaska v. Native Village of Venetie, 522 U.S. 520 (1998)(extended discussion of boundaries of Indian Country); see also, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)(no tribal criminal jurisdiction over non-members); Nevada v. Hicks, 533 U.S. 353 (2001)(limitations on tribal civil jurisdiction over nonmembers). The Onondaga Nation has not sought, as relief in this action to displace the States sovereignty.
12

11

44

Defendants other than the State, may be achieved without New York. Johnson v. Smithsonian, 189 F.3d at 188-189. For these reasons, the Non-State Defendants motion to dismiss for failure to join the State of New York should be denied. Id. at 188-189 (where party is found not to be necessary, the inquiry ends and the motion to dismiss should be denied). B. Even If it Is Found That New York Should Be Joined If Feasible, as a Matter of Equity and Good Conscience this Action Should Proceed in its Absence

If the Court concludes that somehow New Yorks presence as a party is required, there is a second inquiry: whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. Rule 19(b). This Court must analyze four factors and, in the end, determine whether in equity and good conscience the action should proceed in the absence of New York State. Associated Dry Goods Corp. v. Towers Financial Corp., 920 F.2d 1121, 1124 (2d Cir. 1990). The factors are: (1) the extent to which a judgment would prejudice either the State or the parties present before the court, (2) the extent to which any such prejudice may be reduced or avoided, (3) whether a judgment rendered in the absence of the State would be adequate for the remaining parties, and (4) whether if the action is dismissed, the Onondaga Nation would have an adequate remedy elsewhere. Id. A pragmatic examination of the four overlapping factors reveals that this action should proceed even without the State. Rule 19, Advisory Committee Notes, Amended Rule (The factors are to a certain extent overlapping, and they are not intended to exclude other considerations which may be applicable in particular situations.)

45

1.

A Judgment Declaring the Respective Rights of the Onondaga Nation and the County, the City, or a Corporation, Would Have No Effect on Lands to Which New York Claims Title, and Would Certainly Not Prejudice the State or the Remaining Defendants

If the State of New York is absent from the lawsuit because it has declined to participate and the Court grants its request to be dismissed, any judgment declaring the respective rights to the Onondaga Nations land will be applicable for all those lands except those to which the State claims title. Because the States claims to title will be unaffected, the State will suffer no prejudice. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. at 110; see, Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251, 1254 (9th Cir. 1983) (the State of Washington is not a necessary party, and the United States is neither necessary nor indispensable party in Tribes land claim action); Choctaw and Chickasaw Nations v. Seitz, 193 F.2d 456, 460-61 (10th Cir. 1951)(equity and good conscience require that the Tribes claim to lands be resolved in the absence of the United States, a necessary but not indispensable party); Sokaogon Chippewa Community v. Wisconsin, 879 F.2d at 304 (if Tribe has good claim to land, it ought not be barred from prosecuting it by inability to sue an entity remotely involved in dispute); Red Lake Band of Chippewas v. City of Baudette, 730 F.Supp. 972, 980 (D.Minn. 1990) (Tribe brought land claim against State of Minnesota, a city, school district and private entities; neither State nor United States were deemed necessary or indispensable parties); Narragansett Tribe v. Southern R.I. Land Development Corp., 418 F.Supp. 798, 813 (D. R.I. 1976)(United States not a necessary or indispensable party to Tribes land claim action against State and private defendants); see also, Oneida Indian Nation v. County of Oneida, 414 U.S. at 783 (Rehnquist concurring) (with respect to whether U.S. is indispensable party, . . the grant of a land patent to a private party carries with it no guarantee of continuing federal interest . . . ; a federal source of title does not convert an ordinary ejectment action into a federal case.); see, Oneida Indian Nation v. County 46

of Oneida, 434 F.Supp.527, 544 (N.D. N.Y. 1977)(United States not an indispensable party to land claims action and tribe should not be prevented from pursuing claim by unwillingness of United States to join in, or file on its behalf), affd, 719 F.2d 525 (2d Cir. 1983), affd in part and reversed in part on other grounds, 470 U.S. 226 (1985); see also, Mahaffey v. Alexander, 800 So. 2d 1284, 1286 (Ct. App. Miss. 2001) (applying State law modeled after the federal rules in land claim dispute, the court held that persons who no longer claim any interest in the property, having conveyed it away are neither indispensable nor even proper parties). The remaining Defendants suffer no prejudice in having their disputes with the Nation resolved in this action; the fact that the State may appear in the chain of title to other defendants lands, does not make the States participation in this action essential.13 2. A Declaratory Judgment Resolving the Dispute over Title to the Lands Claimed by the Onondaga Nation Would Be Adequate for the Parties Remaining in the Case

To use Honeywell again as an example, the dispute which would be resolved in the absence of the State is whether as between Onondaga and Honeywell, Honeywells title is good despite the (admitted) connivance and unlawful conduct of Honeywells predecessor in title. A declaratory judgment resolving that dispute would be entirely adequate for the parties remaining in the case. See, Universal Reinsurance Co. Ltd., v. St. Paul Fire and Marine Insurance Co., 312 F.3d 82, 88 (2d Cir. 2002)(relief is adequate when, if found appropriate, the claimant will be able to recover complete relief from the parties before the court).

The State suffers no prejudice by absenting itself from this case. The remaining Defendants suffer no prejudice by the absence of the state; they simply are required to defend against the Onondagas evidence that their title is void. Thus, the second factor in the analysis, reducing any prejudice, is inapplicable here. 47

13

3.

If this Action Is Dismissed Due to the Absence of the State, the Onondaga Nation Will Have No Adequate Remedy Elsewhere

The lack of an alternative forum weighs heavily against dismissal. Pasco International v. Stenograph Corp., 637 F.3d 496, 5601 n. 9 (7th Cir. 1980); Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1260 (10th Cir. 2001) (noting that [t]he absence of an alternative forum would weigh heavily, if not conclusively against dismissal and finding absent Indian tribe not indispensable on that basis)(internal cites omitted). The Non-State Defendants suggestion that the Nation may always turn to Congress and plead for legislative relief misses the point of the rule: the question here is whether the Onondaga Nation has an alternative forum which is capable of granting a declaratory judgment. Pit River Home and Agricultural Coop. Assoc. v. United States, 30 F.3d 1088, 1103 (9th Cir. 1994)(issue is whether there is alternative forum in which tribe may seek injunctive and declaratory relief against the government). There is no state or other court, or administrative forum capable of granting a declaratory judgment. PaineWebber Inc. v. Cohen, 276 F.3d 197, 205 (6th Cir. 2001)(state court qualifies as alternative forum); Laker Airways Inc. v. British Airways, 182 F.3 843, 849 (11th Cir. 1999)(administrative remedy is also an alternative forum). The Onondaga Nation seeks a forum which will resolve this dispute; the United States courts, if they hear the case on the merits, will either grant or deny the Nations request for a declaratory judgment. Congress, on the other hand, is not compelled to listen, to weigh the evidence, or to render a judgment. There is no other forum. In sum, the State need not be joined to achieve a just adjudication of disputes over lands in which the State claims no interest; and the States voluntary absence from the action does not require dismissal as to remaining Defendants. The Onondaga Nation seeks to resolve disputes which have plagued the Nation, the City, County, private Defendants, and the State for many 48

decades. If the State succeeds in avoiding the resolution of these disputes as to its claims to land, the action may continue as to the remaining Defendants given that the State has no claim to lands to which those defendants claim title. CONCLUSION For the foregoing reasons, the State and Non-state Defendants motions should be denied. Respectfully submitted,

Dated: November 16, 2006

s/Robert T. Coulter Robert T. Coulter (Bar No. 101416) INDIAN LAW RESOURCE CENTER 602 North Ewing Street Helena, MT 59601 Tel: (406) 449-2006 Fax: (406) 449-2031 E-mail: rtcoulter@indianlaw.org

s/Joseph J. Heath Joseph J. Heath (Bar No. 505660) HEATH LAW OFFICE 716 E. Washington Street, Suite 104 Syracuse, New York 13210-1502 Tel: (315) 475-2559 Fax: (315) 475-2465 E-mail: jheath@atsny.com

s/Curtis G. Berkey Curtis G. Berkey (Bar No. 101147) ALEXANDER, BERKEY, WILLIAMS & WEATHERS LLP 2030 Addison Street, Suite 410 Berkeley, CA 94704 Tel: (510) 548-7070 Fax: (510) 548-7070 E-mail: cberkey@abwwlaw.com

49

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK THE ONONDAGA NATION, Plaintiff, v. THE STATE OF NEW YORK, et al., Defendants. Civil Action No. 05-CV-314 (LEK/DRH)

PLAINTIFFS RESPONSE TO DEFENDANTS STATEMENT OF MATERIAL FACTS

Because they style their motions as ones falling under Rule 12(b)(6), Defendants have not submitted a Statement of Material Facts, which would be required by Local Rule 7.1(a)3 if the motions are converted to motions for Summary Judgment pursuant to Rule 12(b), Fed. R. Civ. Proc. Because facts beyond the First Amended Complaint are in issue in this case, this Court may decide to convert Defendants motions to motions for summary judgment. Plaintiff therefore submits this Response to Statement of Material Facts in opposition to summary judgment. Local Rule 7.1(a)3. The purported facts that are assumed by Defendants and which they ask this Court to accept without proof are entirely incorrect. Thus, Plaintiff contests those of Defendants purported facts which pertain to the issues of laches, acquiescence, impossibility, and disruptiveness, as well as the issues of the Onondaga Nations presence in the area, the character

of the area, the alleged improvements to the area, the effect of a declaration of title and other issues listed below. I. DEFENDANTS STATEMENT OF UNCONTESTED MATERIAL FACTS 1. Plaintiff delayed unreasonably in filing this law suit. 2. Plaintiff acquiesced in the taking of its lands by New York State. 3. Defendants have been prejudiced by the alleged delay in filing suit 4. More than 200 years have elapsed since 1790, when the first actionable wrong by New York State occurred. 5. The area has a non-Indian character. 6. The area in issue has been improved by Defendants. 7. This law suit is disruptive. 8. The Onondaga Nation does not have a presence in the area. Denied. Denied.

Denied.

Admitted.

Denied. Denied. Denied. Denied.

II. PLAINTIFFS RESPONSE TO STATEMENT OF MATERIAL FACTS A. 1. The Federal and State Courts Were Closed to the Onondaga Nation Until 1974 Plaintiff did not delay in filing this suit. From 1788 to 1974, Plaintiff had no legal

opportunity to file this or any similar suit. Declaration of Dr. Lindsay Robertson (Robertson Declaration) passim.

2.

The federal courts did not have jurisdiction to entertain such suits before 1974.

Robertson Declaration 44-49. 3. The original jurisdiction of the United States Supreme Court was not available to

Indian tribes because the Court ruled in 1831 that the Cherokee Nation did not constitute a foreign state for purposes of Article III original jurisdiction. Robertson Declaration 44. 4. The jurisdiction of the lower federal courts, which was established in 1789, was

limited to suits between citizens of different states. Unless citizenship were acquired by other means, individual Indians did not become United States citizens until 1924. The members of the Onondaga Nation were not considered citizens before 1924. Indian tribes are not clearly entitled to claim citizenship for diversity purposes. Robertson Declaration 45. 5. Even if the Onondaga Nation were held to be a citizen of New York for diversity

purposes, complete diversity would have been defeated for a land claim action because the defendants would have been citizens of New York State as well. Robertson Declaration 46. 6. Federal question jurisdiction, which was established in 1875, was not available as

a legal basis for an Onondaga land claim in federal court because the first time the issue was raised the United States Supreme Court foreclosed this option. Taylor v. Anderson, 234 U.S. 74 (1914). The Second Circuit Court of Appeals in 1929 likewise ruled the federal courts did not have jurisdiction over Indian claims challenging the unlawful taking of tribal lands. Deere v. New York, 22 F.2d 851 (1927), affd, 32 F.2d 550 (2d Cir. 1929). Robertson Declaration 48. 7. Deere remained the applicable law in the Second Circuit until 1974, when the

United States Supreme Court ruled that federal question jurisdiction over land claims based on

the Trade and Intercourse Act existed. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974). Robertson Declaration 48. 8. Until relatively recently, New York State denied Indian nations legal capacity to

maintain lawsuits in their own names; instead, the State legislature provided for the appointment of state-funded attorneys or agents to bring or defend such legal actions. Robertson Declaration 7-15. 9. New York State courts construed the appointment of attorneys for Indian nations

as the exclusive means by which legal actions could be prosecuted to assert Indian interests and claims. Jackson ex dem Van Dyke v. Reynolds, 14 Johns. 335 (1817). The court found that denying Indian tribes the right to sue in their own names benefits them because if left at liberty to resort to any attorney they please, they may be involved in ruinous litigation. . . . Robertson Declaration 20. 10. Between 1790 and 1845, only one reported case asserting a land claim could be

found that was brought by an Indian tribe, and that case failed. St. Regis Indians v. Drum, 19 Johns. 127 (N.Y. Sup.Ct. 1810). Robertson Declaration 22. 11. In 1806, the Onondaga Nation petitioned the State of New York for the

appointment of an attorney to represent it. Robertson Declaration 15. 12. On April 7, 1806, the New York Legislature authorized the Council of

Appointments to appoint and commission an attorney for the Onondagas, and Curtis Medad was appointed for that purpose. Robertson Declaration 15. 13. Because Mr. Medad proved ineffectual in asserting or protecting Onondaga land

rights, the New York Legislature abolished the office of Onondaga attorney and appointed 4

Ephraim Webster as agent/attorney in Mr. Medads stead, with identical responsibilities and duties. Robertson Declaration 15. 14. Ephraim Webster acted contrary to the needs and interests of his client. He

facilitated the unlawful conveyance of Onondaga land to the State by acting as interpreter during the treaty negotiations in 1817 and 1822; the Onondagas complained to Governor DeWitt Clinton that Webster had deceived them, but the State refused to replace him. Robertson Declaration 17-18. 15. Neither Curtis Medad, Ephraim Webster, nor any other attorney or agent for the

Onondaga Nation agreed to file suit against New York State concerning the States acquisition of Onondaga land in violation of the Trade and Intercourse Act. Robertson Declaration 21. 16. In 1841, the New York Legislature abolished the office of Onondaga Agent,

directing that the Onondaga Nation should look to the local district attorney to bring legal actions on the Nations behalf; the district attorney was empowered to prosecute only trespass actions on their behalf arising from lands then possessed by the Nation. Robertson Declaration 23. 17. When the office of Onondaga Agent was restored in 1843, the Legislature refused

to authorize the prosecution of legal actions as part of the agents duties, and subjected the agents duties to the specific direction of the Governor. Robertson Declaration 24. 18. The requirement to obey the Governors instructions as a practical matter

precluded any Indian agent for the Onondaga Nation from initiating legal action, even if such authority could be found, to challenge the validity of New Yorks acquisition of Onondaga lands. Robertson Declaration 24. 5

19.

None of the New York State agents appointed by the State for the Onondaga

Nation filed any legal action to recover Onondaga lands. Robertson Declaration 24. 20. One New York State case suggests individual tribal members could sue in state

court to prevent injury to tribal lands, but this right was limited to suits for injunctive relief to protect possessory rights to land within the boundaries of state-recognized reservations, and did not extend to suits on behalf of the tribe to assert rights to land to which others claimed title or occupied. Strong v. Waterman, 11 Paige Ch. 607 (1845). Robertson Declaration 25-28. 22. New York law provided that Indian nations lacked capacity to sue generally in the

absence of authorizing legislation by the New York State Legislature. Robertson Declaration 38. 23. The New York State Legislature never enacted a statute of general applicability

enabling the Onondaga Nation to sue, and state courts confirmed that in the absence of such authorization, neither the Nation nor its members had capacity to sue in state court. Onondaga Nation v. Thacher, 7 Bedell 584, 169 N.Y. 584 (1901), affd, 189 U.S. 306 (1903). In 1940, the Legislature granted a limited exception to this rule and authorized the Nation to sue the Tully Pipeline Company with regard to damage to the Nations cemetery caused by salt and salt-brine from the Companys pipeline. Robertson Declaration 37-39. This is the only enabling statute for the Onondaga Nation that has been found. 24. The New York State Legislature amended its Indian Law in 1953 to provide state

court jurisdiction over civil actions between Indians and other persons, but it was not until 1987 that state courts suggested that the statute accorded state court jurisdiction over civil actions involving Indian tribes. Oneida Indian Nation v. Burr, 522 N.Y.S.2d 742 (1987). In 1995, 6

however, the New York Court of Appeals intimated that this suggestion may be wrong. People v Anderson, 137 A.D.2d 259, 529 N.Y.S. 2d 917 (1998). The question of tribal capacity to sue in New York courts remains unsettled today. Robertson Declaration 41-42. 25. In 1958, the New York Legislature amended its Indian Law to provide that the

governing body of an Indian nation or tribe may maintain an action to recover lands unlawfully occupied by others. To the extent this statute purported to authorize tribes to bring land claims arising before September 13, 1952, however, it conflicted with 25 U.S.C. 233, which precluded state court jurisdiction over such claims. Robertson Declaration 43. B. 26. Traumatic Events Between 1779 and 1850 Prevented the Onondaga Nation From Acting Collectively to Protect Its Land Rights During this period, the government of the Onondaga Nation was disrupted, and its

members temporarily dispersed, by the destructive forces of the Revolutionary War, unrelenting pressure from the State of New York to sell Nation lands, and threats of forced removal from New York. These forces made concerted action by the Onondaga Nation to protect its land and to seek redress for violations of their land rights virtually impossible. Declaration of Professor Anthony F. C. Wallace 24-26, 29 (Wallace Declaration). Persistent federal efforts to remove the New York Indians, including the Onondagas, to enclaves in the west deterred the Onondagas from seeking redress for land rights violations in the courts, even if such courts had been open to them. Wallace Declaration 70. 27. During the most intense period of dispersal, from 1788 to 1795, the State of New

York took control of 99% of the land of the Onondaga Nation. In four state treaties 1788, 1790, 1793 and 1795 the Nations territory was reduced to 7,100 acres, and two additional land

treaties reduced the Onondaga Reservation to its current size of 6,900 acres. Wallace Declaration 27. C. 28. The State of New York Acted in Bad Faith in Obtaining Onondaga Lands The State of New York falsely and deliberately tricked the Onondaga participants

in the 1788, 1793 and 1795 land transactions into believing that they were leasing rather than selling the Nations lands. Declaration of Professor J. David Lehman 45-58 (Lehman Declaration); Wallace Declaration 33. 29. As a result, Onondaga leaders and citizens of the Nation have continuously

believed and understood that the bulk of the Nations lands, particularly the area that is now Syracuse, New York and the area adjacent to Onondaga Lake, was leased and is still owned by the Nation. Declaration of Sidney Hill 37 (Hill Declaration); Wallace Declaration 37. 30. New York State knowingly negotiated the illegal land transactions with

individuals that did not have authority to act for the Onondaga Nation, despite the repeated protests of Onondaga Chiefs that the transactions were invalid for that and other reasons. Lehman Declaration 7, 10, 12 (treaty of 1788); 15, 19, 21, 28, 52 (Treaty of 1793); 58, 59 (Treaty of 1795); Wallace Declaration 31, 34 (Treaty of 1788); 41, 42 (Treaty of 1793); 43. 31. The State of New York exploited the apparent division between the Onondagas at

Buffalo Creek and those at Old Onondaga, who comprised only 12% of the Nations population, in order to coerce participation in state land cession treaties. Lehman Declaration 46, 52, 54; Wallace Declaration 31-44.

32.

The Six Nations Confederacy or Haudenosaunee, of which the Onondaga Nation

was and is a part, repeatedly and vigorously protested the validity of New York States purported acquisition of Indian lands , including the Onondaga Nations lands. Lehman Declaration 5, 7, 10, 14, 30, 60; Wallace Declaration 31, 42. 33. The United States, acting through its President and other officials, informed the

State of New York that congressional approval was required under the Trade and Intercourse Act for the acquisition of Indian land, and that transactions lacking such approval were void, but the State nonetheless obtained Onondaga land in knowing violation of that requirement. Lehman Declaration 22, 39, 40; Wallace Declaration 54. D. The Onondaga Nation Justifiably Relied on Promises by the United States that the Federal Government Would Resolve the Nations Land Rights Complaints Against the State of New York The Six Nations and the Onondaga Nation repeatedly called on Congress, federal

34.

officials and the President of the United States to investigate the fraudulent New York State land treaties, and sought federal assistance against the Statess efforts to obtain Onondaga land. Lehman Declaration 24, 27, 28, 32; Wallace Declaration 55. For example, the Onondagas requested federal Indian agent Israel Chapin to accompany them to a meeting with New York State Governor George Clinton to present their protest against the state Treaty of 1793. Lehman Declaration 30. 35. The United States promised to protect the Six Nations and the Onondaga Nation

against the efforts of New York State to improperly obtain Onondaga land in violation of federal law. Lehman Declaration 34, 37; Wallace Declaration 48. President George Washington in December, 1790, promised federal protection against the State, saying to the Six Nations that 9

the United States will protect you in all your just rights. The United States failed to carry out these promises, even though federal officials told the Six Nations that land taken by the State in violation of federal law still belonged to them. Lehman Declaration 35, 37; Wallace Declaration 4, 63. 36. In 1802, a delegation of Six Nations chiefs, including Onondagas, lead by

Handsome Lake, traveled to Washington, D.C., to meet with Secretary of War Henry Dearborn to discuss redress for New York States violations of Six Nations land rights and federal law. The meeting resulted in the issuance of an executive order by President Jefferson which confirmed Onondaga (and Seneca) title to all lands claimed by and secured to them by Treaty, Convention or deed of conveyance or reservation. The 1802 executive order has not been revoked. Lehman Declaration 41; Wallace Declaration 57, 58 E. 37. For Generations Diplomatic Negotiations Have Been the Customary Method of Resolving Six Nations Land Rights Complaints It was the long-established custom and practice of the Onondaga Nation, the

Haudenosaunee, and New York State to negotiate land and other disputes and differences in diplomatic government-to government meetings, and not to seek resolution of such disputes in courts. Wallace Declaration 9; Hill Declaration 27, 29. This practice is reflected in the Two Row Wampum, a belt of two parallel rows symbolizing the Haudenosaunee governments and European governments agreeing never to interfere with the other by adopting laws that would attempt to govern the other. Article VII of the 1794 Treaty of Canandaigua also reflects this method of resolving differences. Hill Declaration 29, 30, 31.

10

38.

Six Nations land claims were not minor matters to be settled in civil courts but

were issues of major political importance to be settled by negotiation between the legitimate representatives of sovereign nations. Because of their significance to the welfare of the Six Nations, land matters were addressed at public meetings according to solemn protocols that reflected the formality and dignity of the event. Wampum belts and strings memorializing agreements and settlements of land disputes were often exchanged, which, to this day, the Onondaga Nation and the Six Nations rely on for memory of the content of the agreements. Wallace Declaration 47, 20-23. 39. New York State actively encouraged the Onondaga Nation to negotiate with the

State about its objections and disputes regarding land. Wallace Declaration 10. 40. New York State refused to acknowledge that the Six Nations had a well-

established system of land rights and procedures for transfer of land that had been followed for more than a hundred years in relations with Dutch and British colonial authorities. Wallace Declaration 45. Cultural norms among the Onondagas and the Six Nations required unanimous consent among the Nations council of chiefs and concurrence from clan mothers and warriors, for the sale of national territory. Wallace Declaration 5, 19; Hill Declaration 9. 41. Federal and state governments actively discouraged legal action about land

complaints during the period 1788 to 1845. Wallace Declaration 4. F. The Onondaga Nation Persistently Sought to Protect and Preserve Its Lands and Sovereignty from Intrusion by the State of New York and the United States To promote assimilation of Indians into mainstream non-Indian society, New

42.

York State adopted legislation in 1849 calling for partition of tribal lands. The U.S. Congress 11

passed the Dawes Act in 1887. The federal statute allowed Indian reservations to be divided into parcels, allotments, which were then transferred by the federal government to individual Indians with the expectation that individuals would become fee owners of the allotment after the trust period expired. The Onondagas rejected allotment because it threatened the Nations land base; and without land, the Nations sovereignty was at risk. Declaration of Professor Robert E. Bieder at 5 (Bieder Declaration). 43. The Onondaga Nation foresaw the effect of allotment: individually held land

would eventually be subject to state taxes, to foreclosure, and to transfer to non-Indians. Bit by bit the reservation would be sold off; the Onondaga people would become landless and . . . without their traditional government, community and identity. Bieder Declaration at 5, 6, 9, 10. The Tribal community would collapse. Id. at 10. 44. Continuously throughout the period from approximately 1849 to 1918, the

Onondaga Nation resisted state and federal efforts to allot the lands of the Nation. Bieder Declaration at 7-19. That period saw repeated legislative efforts to destroy the Onondaga land base through allotment. Evidence of this is found in the 1889 Whipple Report, the 1901 Lake Mohonk Conference of Friends of the Indian, and U.S. House Bill 18735 (1914)(federal proposal specifically aimed at alloting New York Indian lands). Id. at 16, 17, 18. 45. In 1920, a federal court ruled for the first time that transfers of Indian land to the

State of New York without compliance with the Trade and Intercourse Act were of no legal effect. Bieder Declaration at 21, citing, United States v. Boylan, 265 F. 165 (2d Cir. 1920). The decision again gave the State of New York notice that its supposed treaties made without

12

compliance with federal law were void, although the ability of Indian nations themselves to bring suits challenging such treaties had not yet been established. Id. at 20-24. G. 46. The Everett Commission Concluded New Yorks Title to Indian lands is Void In direct response to the Boylan decision, the State created the New York State

Indian Commission for the purpose of examin[ing] into the history, the affairs and transactions between the State and Indian tribes. Bieder Declaration at 25 (The Commission was chaired by A.E. Everett, and the report of its findings is known as the Everett Report). The Commission met with Onondaga at the Nations Reservation on August 16-17, 1920. The Onondaga Nations statements at that meeting reflected the Nations continuing belief that it was under the legal protection of the federal government, and that New York had no jurisdiction over the Onondaga Nation. Id. at 27-29, 31. Following this meeting, the Commissions report thus framed its task : The fundamental of this question is to get back to whether the whole of the state of New York belongs to these Indians and if they should have compensation for what they have lost. Bieder Declaration at 34 (quoting George E. Vaux, Chairman of the Federal Indian Commission). The Everett Report concluded: I [Chairman Everett] maintain that you [the Iroquois] are the owners of all the territory that was ceded to you at the close of the Revolutionary War and unless you disposed of that property by an instrument as legal and binding and necessary as the conditions of that treaty was to place that property in your possess, you are still the owners of it. Everett Report at 319-320. Bieder Declaration at 37. 47. New York States own commission had concluded that the Six Nations had title to

lands which the State had erroneously claimed was transferred to it. Bieder Declaration at 38.

13

48.

The New York legislature did not act in response to the Report of the Everett

Commission. Bieder Declaration at 40. H. 49. The Six Nations, Including the Onondaga Nation, Unsuccessfully Sought Relief in Federal Court When the State legislature did not act in response to the States own commissions

findings, the Six Nations established a strategy for recovery of their lands. Bieder Declaration at 16. Though Everett stated that approximately one-half of New York State is [Indian] property, the Six Nations and the Onondaga Nation were hesitant to file a lawsuit because of the extraordinary expense. Bieder Declaration at 41-47. 50. After debate, however, the Six Nations authorized the filing of suit. James Deere,

a Mohawk chief, filed suit against occupants of lands to which the Mohawks claimed title. Bieder Declaration at 48, 49. The federal court dismissed the action finding that it had no jurisdiction to hear an Indians land claim which was based upon the Trade and Intercourse Acts and treaties with the United States. Id. at 50; Deere v. St. Lawrence River Power Co., 32 F.2d 550 (2d. Cir. 1929). I. 51. Following the Federal Court Defeat, the Six Nations and the Onondaga Nation Pursued Their Land Claims in Congress The Six Nations land claims were presented to the U.S. Congress in 1929.

Bieder Declaration at 55 (Testimony of Oneida Tribal member, Laura Minnie Cornelius Kellogg). Ms. Kellogg pleaded with Congress urging the United States to take legal action to recover 18,000,000 acres of land wrongfully taken from the Six Nations by the States of New York and Pennsylvania. Bieder Declaration at 56-64. Congress did not act, and the United States did not take legal action to enforce the treaty guarantees made to the Six Nations. Id. 14

52.

That same year, the City of Syracuse attempted to construct two dams on the

Onondaga Reservation in order to protect the City from flooding. Bieder Declaration at 6163. If built, the dams would have destroyed Onondaga homes. The Onondaga took their protests again to Congress, asserting that neither the State of New York nor the City of Syracuse could take Onondaga land. Id. 53. The Six Nations or Haudenosaunee submitted a petition to Congress asserting the

land claims of the Onondaga Nation and other Iroquois nations to Congress, and the petition was printed in the hearing record in 1929 and again in 1930. Bieder Declaration 56-58, 63. 54. In 1948, the U.S. Senate held hearings on a bill to Confer Jurisdiction on the

Courts of the State of New York with respect to criminal acts, a bill to Provide for the Settlement of Certain Obligations of the United States to the Indians of New York, and a bill to confer state court jurisdiction over certain civil claims involving Indians. Bieder Declaration at 65. The Six Nations used these hearings as yet another opportunity to press their land claims. Id. at 66. The Six Nations also testified in opposition to the State courts taking jurisdiction over Indians, pointing out the failure of the State to redress the land takings identified in the Everett Report in 1921. Bieder Declaration at 66-68. The Onondaga Nation chiefs testified that the bills would interfere with the Nations ability to pursue its land claims, stating that those claims were established by the Everett Commission determination. Id. A member of the New York State Joint Legislative Committee on Indian Affairs was present throughout the Indians testimony to Congress. Id. at 71.

15

J. 55.

In Recent Years, the Federal Courts Gradually Opened Their Doors to Indian land claims It was not until 1974 that the courts of the United States began to recognize that

they had jurisdiction to hear Indian lawsuits which alleged violations of the federal Trade and Intercourse Act. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974). It was not until 1985 that the courts resolved some of the remaining substantial disputes establishing that Indians had a cause of action arising from a violation of the Act, and that there was no statute of limitations on such claims. County of Oneida v. Oneida Indian Nation, 470 U. S. 226 (1985). Additional questions remained, such as appropriate remedies, state immunity, and liability for land takings prior to the Trade and Intercourse Act. Thus, from the perspective of the Indian nations, though the federal courts appeared to be listening for the first time in nearly 200 years, a complete remedy for a States unlawful takings was still not available in the courts. Declaration of Robert T. Coulter 6-10 (Coulter Declaration). 56. Nevertheless, as early as 1976, the Haudenosaunee formed a Lands Committee to

consider these new developments. The Committee concluded that negotiations were preferable to litigation, and that the Six Nations would pursue the recovery of their lands as a confederacy to the greatest extent possible. Coulter Declaration 12. Accordingly, the Committee met with White House counsel to negotiate a resolution to the claims. Id. 13. The Nations efforts to commence negotiations with the federal government were not successful. 57. In 1982, the Haudenosaunee Lands Committee succeeded in meeting twice with

one White House Advisor, again requesting negotiations to resolve the land disputes. The Administration of then-President Reagan agreed to begin negotiations, as did the Interior

16

Department. For reasons unknown to the Nation, those negotiations did not occur. Coulter Declaration 17. 58. The Nation was constrained from seeking coercive relief in the courts or

elsewhere by its knowledge that Congress asserted that it had plenary power over Indian nations including the power to extinguish land rights without due process and without recourse. Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955). Coulter Declaration 18-21. The Nation believed with good reason that litigation to enforce the federal law could lead to unilateral extinguishment of its land rights. Id. at 20, 26-29. A bill to extinguish Indian land claims was presented in Congress in 1982, though it did not pass. 59. The Onondaga Nation during this period was aware of provisions of federal law

which set limits on Indian claims for contract or tort damages. Coulter Declaration 84-86. But the Nation noted that the statute, though amended by Congress in 1982, exempted Indian suits for land title or possession from any time limits. The Nation thus believed that its cautionary approach to litigation was justified. Id. 60. The risk of extinguishment loomed large in the minds of the Nations leaders.

Accordingly, the Onondaga Nation and Haudenosaunee took the issue to the United Nations in 1976, seeking an international forum to protect their land rights. Coulter Declaration 23, 25. Relief was not quickly forthcoming. Id. at 24 (A Declaration of the Rights of Indigenous Peoples is pending before the United Nations at the 2006 session.)

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K. 61.

The Onondaga Nation Acted Responsibly in Recent Decades to Defend and Protect Its Land Claims in Federal Court. During the 1970s and 1980s, the Onondaga Nation was required to expend scarce

resources to defend its land claims in various court actions. Coulter Declaration 30-49. A claim for damages against the United States was filed in the Indian Claims Commission by individuals who purported to represent the Six Nations, and the judgment in that claim posed the threat of extinguishing the Onondaga Nations land claims. The Onondaga Nation was forced to sue, and it later refused to accept the monetary award. Id. at 33, 34. L. 62. Consistent With Its Historic Practice, the Onondaga Nation Requested the Assistance of the United States in Achieving Justice for the Loss of Its Lands The Onondaga Nation wrote to the President of the United States in 1989,

asserting again that the treaties with the State of New York were void and had been made in violation of federal law. The Nation asked again for a meeting to discuss its land rights. Coulter Declaration 56. The request for a meeting was denied. During the past 20 years, the Onondaga Nation repeatedly requested the United States to file suit in support of the Nations land rights claim. The United States has not made a final determination on these requests. Hill Declaration 34. 63. Three years later, however, the Department of the Interior for the first time stated

that it was considering taking legal action in support of the Onondaga Nation, to recover the Nations lands. Coulter Declaration 57. No action was filed. 64. Having been spurned by the federal government, the Nation undertook efforts to

find attorneys capable of representing the Nation despite its lack of financial resources. The Nation has historically resisted hiring attorneys on a contingency fee basis because such contracts 18

reinforced the tendency on the part of such attorneys to seek money damages, which has never been a priority of the Nation. Hill Declaration 36,39 65. The Onondaga Nation also sought financial assistance directly from the federal government to pursue the land claim. Virtually every year through the year 2001, the Nation formally requested that the United States either bring suit to protect its lands or provide funding so that the Nation could do so. The requests were made in writing and in meetings with federal agencies. Neither request was granted. Coulter Declaration 60-65. M. 66. The Onondaga Nation Attempted Without Success to Negotiate a Resolution to This Dispute Directly With the State of New York In 1988, the Onondaga Nation renewed its efforts to negotiate directly with the

State. Coulter Declaration 72. Though the Nation was impeded in its campaign to seek negotiations with the State by several years of lawlessness on its Territory, it continued to make requests. Id. at 72-78. The Nation secured a meeting with New York Governor Pataki in 1998 and subsequent meetings that year with the Governors staff. Id. at 79. 67. The series of meetings ended when the Governor and his staff insisted that the

Nation first file its lawsuit seeking recovery of Onondaga land before further settlement talks would be held. Coulter Declaration 80-82, 83; Hill Declaration 33. N. 68. The Onondaga Nation Has Sought A Resolution of Its Land Rights Dispute That Does Not Disrupt or Harm Its Neighbors Consistent with its traditions, and its goal of reconciliation and healing regarding

the land disputes, the Nation began in 1995 a public education campaign to insure that its neighbors understood the facts of the land rights dispute, and the Nations intentions. Coulter Declaration 87-90; Hill Declaration 22, 23, 40. 19

69.

When it had exhausted all other alternatives and the Nation filed this lawsuit, the

Nations harmonious relationships with its neighbors were such that the pendency of this claim brought positive responses and support; there was no interruption to civic relations, business interests, local government, or the real estate market. Declaration of Joseph J. Heath 8-34 (Heath Declaration) The public response to the Nations lawsuit in general has been one of support for the legitimacy of the claim and the goals of rehabilitation of the Nations land from its current state of degradation to one of health. Id. The filing of this lawsuit has not been disruptive. 70. The supportive response by the Onondaga neighbors is reflective of the nature of

the community in which the Nation and non-Indian citizens live. There is ongoing awareness of the Onondaga history in Central New York; continuous cooperation on protecting Onondaga cultural sites and artifacts when there is proposed development of those lands by non-Indians; and a pervasive public spirit of unity between the Indian and non-Indian communities. Heath Declaration 35-46. 71. There is no factual basis for any speculation that these harmonious relations

would be ruined by a declaration that New York States title claims to Onondaga lands are void. Heath Declaration 47-50. For example, the Seneca Nations title to lands of the City of Salamanca, New York, which is completely within the boundaries of the Seneca Reservation, has not interfered with orderly operations of the city government or the real estate market in the City. Id. 72. The Onondaga Nation filed this lawsuit in order to address historic wrongs and

environmental damage caused by the loss of the Nations lands. The suit was filed because the 20

Nations land rights were being ignored and the natural world was being desecrated. The Nation is motivated by the principle of healing the natural world and healing the relationships with the Nations neighbors, based on the traditional cultural value of stewardship of the lands and waters. Hill Declaration 19-22,27. 73. The Onondaga Nation did not sue any individuals nor seek to evict anyone in the

claim area, because the Nations wishes to resolve this land rights dispute in a non-disruptive manner. Hill Declaration 22. 74. The only disruptions arising from the existence of this land dispute appear to be

those caused by the corporate defendants 100-year occupation of Onondaga lands; the degradation of the land and water through the dumping of toxic wastes and mining operations are estimated to have caused damages on the order of billions of dollars. Heath Declaration 5158. O. The Onondaga Nation Maintains A Strong Demographic, Cultural, Legal and Political Presence in the Lands That Were Taken by the State of New York Between 1788 and 1822. The Onondaga Nation is the central fire of the Haudenosaunee Confederacy,

75.

which is comprised of the Mohawk, Oneida, Cayuga Seneca and Tuscarora Nations located throughout upstate New York. The members of the Haudenosaunee live throughout its aboriginal lands in New York State. Hill Declaration 4. 76. Although a small number of Onondaga Nation members left the Nations

aboriginal area during the forced removal by the United States, the great majority of Nation members continue to live in the Nations aboriginal territory. Hill Declaration 11.

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77.

The members of the Onondaga Nation continue to use its traditional homeland for

purposes of hunting, fishing, and medicinal and cultural plant gathering. The area, and in particular the health and welfare of the natural world, continue to be important to the Onondaga Nation. Hill Declaration12, 15-21. Certain portions of the Onondaga Nations aboriginal territory have special cultural and religious significance as evidenced by the fact that the Peacemaker, who formed the Haudenosaunee hundreds of years ago, visited and used these areas. Id. 13,14. 78. Onondaga Lake, located within the land that is the subject of this action, is

especially important to the Onondaga Nation, because it is the location of the formation of the Haudenosaunee, and many Nation members lived there and relied on the natural resources for their survival. Hill Declaration 13 79. The ancestors of citizens of the Onondaga Nation are buried in unmarked graves

throughout the Nations aboriginal territory. Hill Declaration 42. 80. The federal, state and local governments have acknowledged the continuing ties

of the Onondaga Nation to many areas within the land that is the subject of this action by consulting with the Nation with regard to the impacts caused by development projects on cultural resources significant to the Nation. Heath Declaration 37-39. Date: November 16, 2006 Respectfully submitted, s/Robert T. Coulter Robert T. Coulter Bar No. 101416 INDIAN LAW RESOURCE CENTER 602 North Ewing Street Helena, MT 59601 Tel: (406) 449-2006 Fax: (406) 449-2031 E-mail: rtcoulter@indianlaw.org 22

s/Joseph H. Heath Joseph J. Heath Bar No. 505660 HEATH LAW OFFICE 716 E. Washington Street, Suite 104 Syracuse, New York 13210-1502 Tel: (315) 475-2559 Fax: (315) 475-2465 E-mail: jheath@atsny.com s/Curtis G. Berkey Curtis G. Berkey Bar No. 101147 ALEXANDER, BERKEY, WILLIAMS & WEATHERS LLP 2030 Addison Street, Suite 410 Berkeley, CA 94704 Tel: (510) 548-7070 Fax: (510) 548-7080 E-mail: cberkey@abwwlaw.com

23

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

THE ONONDAGA NATION, Plaintiff, v. Civil Action No. 05-CV-314 (LEK/DRH)

THE STATE OF NEW YORK, et al., Defendants.

DECLARATION OF TADODAHO SIDNEY HILL, ONONDAGA NATION:

TADODAHO SIDNEY HILL, hereby declares the following to be true and correct under penalty of perjury that: 1. I am Tadodaho, one of the leaders of the Haudenosaunee. As such, I am familiar with the facts and circumstances pertaining to the Haudenosaunees and the Onondaga Nations spiritual, cultural and historic practices concerning the land, the water and the creatures of the Natural World. I am a member of the Onondaga Nations Council of Chiefs and have been present for and participated in numerous meetings when the matters of the Nations land rights have been discussed. Further, I am familiar with the oral traditions of the Onondaga Nation and the Haudenosaunee relative to our lands and how they were lost. 2. The Onondaga Nation is one of the member nations of the Haudenosaunee, also

known as the Six Nations Iroquois Confederacy. The Onondaga Nation is a sovereign nation and has entered into treaties with many other nations. The Onondaga Nation is a distinct political entity with inherent, sovereign rights of self-determination and governance. 3. I make this Declaration in opposition to the two motions to dismiss, one by New York State and the other by the non-state Defendants, which were filed on August 15, 2006 in the Nations land rights action. 4. The Onondaga Nation is the central fire and the fire keepers of the Haudenosaunee. Onondaga convenes the meetings of the Grand Council, the governing body of the Haudenosaunee. The other Nations of this Confederation are the Mohawk Nation, the Oneida Nation, the Cayuga Nation, the Seneca Nation and the Tuscarora Nation. 5. It remains the tradition and practice of the Haudenosaunee that major decisions about land are made by the entire Haudenosaunee, in the Grand Council. The Onondaga Nation brought this action on its own behalf and on behalf of and with the authority of the Haudenosaunee. (Amended Complain: 6.) 6. Further, it is the tradition and practice of the Haudenosaunee leaders to make all major decisions about land on behalf of the future generations, those whose faces are looking up from the earth. 7. We govern ourselves under the Great Law of Peace, a message brought to us by the Peacemaker to end the fighting among the original Five Nations. We buried our weapons of war and came together to form the Haudenosaunee. The Onondaga Nation has maintained

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its original form of government despite constant pressure from outside governments to interfere with and replace our original government. 8. The Nations government functions with a Council of Chiefs, who are nominated by their Clan Mothers. After a careful process which includes consensus at different stages by the Clans, by the Nation and finally by the Haudenosaunee Grand Council, each Chief is then installed by the entire Six Nations of the Confederacy. 9. All decisions by our Council of Chiefs are by consensus. This consensus decision making process is deliberate and it is essential to Haudenosaunee law. This system has preserved our democracy, which dates back to the formation of the Haudenosaunee by the Peacemaker, long before the landfall of the Europeans in the Western hemisphere. 10. The Onondaga Nation continues to reside on a small area of our original land. Our homeland has been reduced from millions of acres to our current homeland of a few thousand acres, which has always been original Onondaga Nation land, under the jurisdiction of our Onondaga Nation government. 11. The Revolutionary War was fought across the Haudenosaunee lands. The Sullivan/Clinton/Van Schaick raids of April, 1779 caused the temporary dispersement of our people. These extreme conditions caused a small number of the Onondaga people to leave this area during the 1780s, 1790s and early 1800s. Land speculators and the attempt to

enforce the removal policy of New York State were major threats to our people during this period. However, the great majority of our people currently live here. We have never left

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our homelands. 12. The United States government was specific in promising to protect our lands, as shown by the 1790 Trade and Intercourse Act and President Washingtons commitment to Haudenosaunee leader, Cornplanter in December of 1790: [T]he General Government only has the power to treat with the Indian nations, and any treaty formed, and held without its authority, will not be binding. Here, then, is the security for the remainder of your lands. No State, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States. The General Government will never consent to your being defrauded, but will protect you in all your just rights. Hear well, and let it be heard by every person in your nation, that the President of the United States declares, that the General Government considers itself bound to protect you in all the lands secured to you by the treaty of fort Stanwix, the 22d of October, 1784, . . . (American State Papers: Indian Affairs, vol, 1, p. 142.) 13. President Washington wanted to secure and maintain peace with and the neutrality of the Haudenosaunee in 1790, because he saw these as essential to the fledgling federal government, which at that time was losing the Ohio Indian wars. 14. Our people continue to make use of much of the lands that the Creator had provided for us, for purposes of hunting, fishing, and gathering of plants for medicinal and

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cultural uses. We still exercise our original rights to hunt, fish and gather at various places throughout our original lands; not just in our current homeland. We remain deeply concerned about the degraded condition of the land and waters throughout our original land. 15. Our sacred Onondaga Lake is a prime example of this degradation and it is a national disgrace. Our history teaches us that the formation of the Haudenosaunee by the Peacemaker took place on the shores of Onondaga Lake, where our people lived and relied on the natural resources of the Lake and this area. It is for this historic and cultural reason that Onondaga Lake is sacred to the Onondaga Nation and the Haudenosaunee. 16. There are other locations within the original lands of the Onondaga Nation that are sacred to the Nation and the Confederacy. These sacred places include other areas visited and used by the Peacemaker, as well as other locations where we used to live, hunt and fish and where important events in our history took place. 17. One of the mandates that is given to our leaders is that we are the caretakers of the land and waters. It is our duty to protect and preserve the land and waters for the future generations, those yet to come. Our obligation is now focused on restoration of the land and waters to their original conditions, for the benefit of the coming seven generations. 18. Our entire way of life and culture is tied to the land, the water and the natural world of the plants and animals. Our clan system is integral to our culture and government and our Clans are named after creatures of the natural world: the deer, the wolf, the turtle, the heron, the snipe, the eel, the hawk, the beaver and the bear. To this day, whenever one

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of our citizens identifies herself, she will say, for instance: I am from the Turtle Clan of Onondaga Nation. 19. Within the Onondaga Nations culture, laws and government, the way that we view land ownership is fundamentally different from the European system. All land of the Haudenosaunee was, and still is, collectively owned, under what we term the one bowl concept of all people sharing the land. 20. We also share the lands and waters with all creatures in the natural world. We do not think of ourselves as separate from or above the natural world. We have a saying that: We are the environment. 21. Historically, we struggled against outside influences to preserve this system of collective, Nation control of all lands. Particularly, we resisted vigorously the attempts by New York State and the United States to allot our lands in the late 1800s. 22. The Onondaga Nation has continued this unique, collective relationship to the lands and waters to this day. We are stewards of the lands and waters, with a duty to preserve them for the future generations. 23. Our relationship to the land, the waters and the entire natural world is spiritual, cultural and fundamental to our way of life and governance. For instance, whenever we gather we always recite the words that come before all else, which is our way of acknowledging all the gifts of the natural world. In this opening address, we always list and acknowledge all of the plants, animals, waters and other aspects of the natural world which

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sustain life. 24. Because our people have been deprived of our access to so much of our former land, water ways and the wildlife, our culture, health and well-being as a people have suffered. The Onondagas see our relationship to the land, the waters and the natural world as mutual, life sustaining and healing. 25. It was this principle of healing that caused our leaders to instruct our attorneys to begin our land rights action with a clear statement that this legal action was not meant to be disruptive to our non-Indian neighbors, but that it was meant to bring about a healing of past wrongs. These historic wrongs include both New York States illegal taking of our homelands and the horrific and life threatening environmental damage that has occurred on our original lands. 26. For generations, our Nations leaders have strived to live in harmony with our new neighbors and to welcome them into our land under the spirit of our Great Law of Peace. It was in this spirit that we instructed our attorneys to begin this legal action with the first paragraph of the Complaint, which reads: The Onondaga people wish to bring about a healing between themselves and all others who live in this region that has been the homeland of the Onondaga Nation since the dawn of time. The Nation and its people have a unique spiritual, cultural, and historic relationship with the land, which is embodied in Gayanashagowa, the Great Law of Peace. This relationship goes far beyond federal and state legal concepts of ownership, possession, or other legal rights. The people are one with the land and

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consider themselves stewards of it. It is the duty of the Nations leaders to work for a healing of this land, to protect it, and to pass it on to future generations. The Onondaga Nation brings this action on behalf of its people in the hope that it may hasten the process of reconciliation and bring lasting justice, peace, and respect among all who inhabit this area.

27. Our instructions to begin this legal action in this healing, non-disruptive manner were given well before either the Sherrill decision by the Supreme Court, or the dismissal of the Cayuga Nations land claim by the Second Circuit. 28. It was in this spirit of working with our non-Native neighbors in Central New York that we also instructed our attorneys not to name any individual land owners as defendants in this land rights action, to never seek any evictions of the current land owners, and to never seek any money damages against any individuals. 29. Since I was a child, I have always heard our elders talk about the illegal taking

of our lands and how, one day, we hoped to address this wrong. Further, our elders always discussed that our Nation lands had been merely leased, not sold to New York State. Our decision about how to attempt to correct the illegal taking of our original lands and the subsequent environmental destruction of those lands has been discussed by our Council of Chiefs in our Nations Longhouse. Further, from talking with our elders, I have learned that the Onondaga leaders have always talked about how these historic injustices could be addressed. This has not been an easy or quick decision making process for our leaders or our people; we have struggled with it for generations. -8-

30. For generations, our leaders attempted to exercise our rights, as preserved in our federal treaties, to resolve any differences that would come between our peoples. It was only after we concluded that our rights were being ignored and that the natural world was being further and further desecrated that we reluctantly decided that we had no alternative other that to file this land rights action. 31. One of the aspects of our long discussion and decision making has been that we are a sovereign Nation, with treaties with the United States in 1784, 1789 and 1794. As a sovereign Nation, until now we have generally felt that it was not proper for our Nation to go into the federal or state courts, because these are institutions of separate governments. 32. Since our first encounter with Europeans, we have always maintained

government-to-government, diplomatic relationships with successive colonial governments. Our first treaty, with the Dutch in the early 1600s, was the Two Row Wampum. It was our practice to record our historic treaties with successive European governments in wampum belts. The Two Row has a background of white wampum beads, with two, separate and parallel rows of purple wampum. These two separate rows symbolize the distinct

governments, one the Haudenosaunee and the other the Europeans, traveling down the river of life together, side-by-side and agreeing never to interfere with the other by passing laws that would attempt to govern the other. We still conduct ourselves in accordance with the Two Row. 33. This spirit of separate and distinct sovereigns is still very much a part of the

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current Haudenosaunee and Onondaga systems. We still believe that diplomatic interactions are the best way to resolve any differences with either the federal government or New York State. Our elders always told us that we are to use direct, government-to-government interactions, rather than going into the courts of another government. 34. This traditional commitment to diplomacy is also completely supported in our treaties. For instance, in the 1794 Treaty of Canandaigua with the United States, Article VII sets forth the proper method of resolving differences with the United States: Lest the firm peace and friendship now established should be interrupted by the misconduct of individuals, the United State and Six Nations agree, that for injuries done by individuals on either side, no private revenge or retaliation shall take place; but, instead thereof, complaint shall be made by the party injured, to the other: By the Six Nations or any of them, to the President of the United States. . . .

35. The leaders of the Onondaga Nation have always used this diplomatic vehicle of direct contact with the President, or his designee, to resolve differences, and we continue to use Article VII to this day. We have repeatedly gone to the President with our concerns that New York State took our lands illegally, and the Canandaigua Treaty tell us that this is the correct way to address this problem. 36. Article VII of the Canandaigua Treaty was invoked by the United States government in 1974, when they sent a letter to the Haudenosaunee, asking for our assistance in resolving a conflict in the Adirondack Mountains. A copy of this November 22, 1974

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letter from the Bureau of Indian Affairs to the former Tadodaho, Leon Shenandoah, is attached to this Declaration, as Exhibit A. This letter clearly invokes and makes reference to Article VII, so that our peace and friendship [shall be] unbroken. Id. 37. This strong traditional preference for diplomacy also caused us to meet repeatedly with the New York State Governors office and the States lawyers, at least since the mid1980s, to discuss how these historic takings of our lands could be resolved. Eventually, in the late 1990s, one of Governor Patakis lawyers and the Governor himself informed us that we could not continue to meet to discuss a possible resolution of our land rights and that we would have to take the state to court. 38. Throughout this same period, we have repeatedly requested the United States to file suit in support of the Nations land rights action. We have had innumerable meetings with representatives of the federal government, particularly high ranking officials in the Departments of Interior and Justice, to discuss our requests. These meetings have been to request specific litigation assistance, such as funds to pay for experts or the provision of separate, federal experts, for this legal action. Many other meetings were held to repeatedly remind the federal government of its obligation to join with us in suing New York State for its violations of the United States Constitution, the treaties and the Trade and Intercourse Acts. Despite dozens of such meetings in Washington, DC, we still are waiting for a favorable response from the federal government to our litigation request. 39. We have also had scores of meetings with the Nations lawyers, to discuss

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whether or not to file a land rights action, and if so, what form it should take. Over the past several decades, the Nation was carefully assessing whether such law suits were legally viable, and for this purpose we have monitored the progress, or lack thereof, of other Nations suits. We were aware that these suits had not yet been successful and had not been finally legally validated by the federal courts. Until the Oneida Supreme Court decisions, it was not possible to go to court. 40. We were also very concerned when the court ruled that money damages were the only form of relief available to other Nations for the historic illegal takings of their lands. The Onondaga Nation has been primarily concerned with protecting the lands and seeking justice. Seeking money damages has never been a priority. Our decision to come to federal court to attempt to find justice for the States illegal taking of our land was made more difficult and was delayed because of the courts decision to give money damages as the exclusive remedy. 41. Another hurdle for our leaders in reaching any consensus decision about going into federal court was our Nations oral history that the Nations lands were merely leased to New York State, not sold. This is particularly true of the area that is now the City of Syracuse and the immediate area around Onondaga Lake. 42. The Nation has historically been resistant to contingent fee contracts with

attorneys, relative to land rights issues, because such contracts reinforced the tendency on the part of attorneys to seek money damages rather than settlements that more fairly

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addressed the need for justice for New York States historic and current wrong-doings. It was not until recently that we identified attorneys who would represent us on a noncontingent bases; who were knowledgeable about our history, culture and legal rights; and who were also capable of carrying out the needed research and advising our Council of Chiefs. 43. As we observed the suits by the Oneidas and Cayugas over the years, we decided that, in order to minimize the possible impact on our neighbors, we should embark on a communications campaign to increase public understanding about the Nation and its land rights. As part of this campaign, our leaders have gone out into the neighboring communities to speak to civic groups and at public meetings to explain the Nations interests in its lost lands and why the Nation would be filing this land rights action. Our leaders have spoken at hundreds of such meetings and to the media, and the results have been very positive, with each side learning from the other. We have observed an almost complete absence of the severe tension that has occurred elsewhere in the state in reaction to the other Nations suits. 44. From these meetings, we have learned that our neighbors recognize that this area was the original land of the Onondaga Nation; that this realization is not necessarily threatening to our neighbors; and that most of our neighbors welcome and share our concerns about the environmental destruction that has taken place. They welcome our assistance in working to heal the land, the waters and the difficulties caused by New Yorks illegal takings of our original land.

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45. Our ancestors are buried, in unmarked graves, throughout our original lands. It is the duty of our current Nation leaders to protect these numerous resting places from being disturbed. Our ancestors graves deserve to be protected and that they should remain undisturbed. The Nation has attempted to work with outside governmental agencies to protect these graves. However, this preservation has not always occurred and our concerns over this problem has been another motivating factor in seeking to exercise our rights throughout our original land. 46. In the 1700s our ancestors worked cooperatively with the leaders of first the

colonies, and then the emerging federal government. In 1754, the Albany Plan of Union was the result of Benjamin Franklin and others having met with our leaders. The Haudenosaunee leaders shared the lessons of the structure and balance of our democracy. 47. After 200 years, in 1988, the United States Congress recognized the important contributions of the Haudenosaunee to the foundation of the American democratic system. Attached hereto, as Exhibit B, is a copy of the House of Representatives Concurrent Resolution, 331, which was passed on October 3, 1988 and which states, in part: To acknowledge the contribution of the Iroquois Confederacy of Nation to the development of the United States Constitution and to reaffirm the continuing government-to-government relationship between Indian tribes and the United States established in the Constitution. Whereas the original framers of the Constitution, including, most notably, George Washington and Benjamin Franklin, as known to have -14-