UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                                 August Term, 2003

(Argued: March 31, 2004                                                Decided: June 28, 2005
                                                                       Errata Filed: July 8, 2005
                                                                       2nd Errata Filed: July 18, 2005)
                       Docket Nos. 02-6111(L), 02-6130, 02-6140, 02-6200, 02-6211,
                              02-6219, 02-6301, 02-6131, 02-6151, 02-6309


CAYUGA INDIAN NATION OF NEW YORK ,

                            Plaintiff-Appellee-Cross-Appellant,

SENECA -CAYUGA TRIBE OF OKLAHOMA ,

                            Plaintiff-Intervenor-Appellee-Cross-Appellant,

UNITED STATES OF AMERICA,

                            Plaintiff-Intervenor-Appellee,

                  -v.-

GEORGE PATAKI, as Governor of the state
of New York, et al., CAYUGA COUNTY and
SENECA COUNTY , MILLER BREWING COMPANY, et al.,

                            Defendants-Appellants-Cross-Appellees.


Before: CABRANE S and POOLER, Circuit Judges, and HALL, District Judge.*

         Defendants appeal from a judgment of the United States District Court for the Northern

District of New York (Neil P. McCurn, Judge) awarding tribal plaintiffs approximately $248 million

in damages and prejudgment interest against the State for the late-eighteenth-century dispossession

of their land, in violation of the Nonintercourse Act. 25 U.S.C. § 177. The tribal plaintiffs cross-


         *
           The Honorable Janet C. Hall, of the United States District Court for the District of Connecticut, sitting by
designation.


                                                             1
appeal from the award of prejudgment interest and the denial of the remedy of ejectment. The

Supreme Court recently ruled in City of Sherrill v. Oneida Indian Nation, 

(2005), that

equitable doctrines, such as laches, acquiescence, and impossibility, can, in appropriate

circumstances, be applied to Indian land claims. We understand the circumstances contemplated by

Sherrill to include possessory land claims of the sort advanced here. We hold that plaintiffs’

possessory land claim is subject to the defense of laches and conclude that the claim must be barred

on that basis.

        Reversed.

        Judge Hall dissents in part and concurs in part in the judgment in a separate opinion.


                                        MARTIN R. GOLD (Raymond J. Heslin, Robert P. Mulvey, of
                                        counsel), Sonnenschein Nath & Rosenthal, LLP, New York,
                                        NY, for Cayuga Indian Nation of New York

                                        GLENN M. FELDMAN (Brian M. Mueller, of counsel), Mariscal,
                                        Weeks, McIntyre & Friedlander, P.A., Phoenix, AZ, for Seneca-
                                        Cayuga Tribe of Oklahoma

                                        TODD S. KIM (Thomas L. Sansonetti, Assistant Attorney
                                        General, on the brief, Roger R. Martella, Jr., Hank Meshorer,
                                        Elizabeth A. Peterson, of counsel), U.S. Department of Justice,
                                        Environment & Natural Resources Division, Washington,
                                        D.C., for United States of America

                                        HOWARD L. ZWICKEL, Assistant Attorney General (Eliot
                                        Spitzer, Attorney General of the State of New York, on the
                                        brief; Caitlin J. Halligan, Peter H. Schiff, Andrew D. Bing,
                                        Sachin Pandya, Brian Kreiswirth, of counsel), Albany, NY, for
                                        George E. Pataki, as Governor of the State of New York

                                        WILLIAM L. DORR (Daniel J. Moore, Brian Laudadio,
                                        Gregory J. McDonald, of counsel), Harris Beach LLP, Pittsford,
                                        NY, for Cayuga County and Seneca County

                                        GUS P. COLDEBELLA (Anthony M. Feeherry, Mark S. Puzella,
                                        Brett C. Gerry, of counsel), Goodwin Procter LLP, Boston,
                                        MA, for Miller Brewing Co. et al, Individually and as Representative of


                                                    2
                                       the Defendant Class

                                       Carey R. Ramos (Jacqueline P. Rubin, of counsel), Paul, Weiss,
                                       Rifkind, Wharton & Garrison, New York, NY, for amicus curiae
                                       Oneida of the Thames

                                       William W. Taylor, III (Michael R. Smith, Thomas B. Mason,
                                       David A. Reiser, of counsel), Zuckerman Spaeder LLP,
                                       Washington, D.C., for amicus curiae Oneida Indian Nation of New
                                       York

                                       Arlinda F. Locklear (Lawrence S. Roberts, of counsel),
                                       Jefferson, MD, for amicus curiae Oneida Tribe of Indians of
                                       Wisconsin

                                       Jeanne S. Whiteing (Tod Smith, of counsel), Whiteing & Smith,
                                       Boulder, CO, for amicus curiae Seneca Nation of Indians of New
                                       York

                                       Don B. Miller, P.C., Boulder, CO, for amicus curiae Stockbridge-
                                       Munsee Indian Community

                                       Hans Walker, Jr. (Marsha K. Schmidt, of counsel), Hobbs,
                                       Straus, Dean & Walker, LLP, Washington, D.C., for amicus
                                       curiae St. Regis Mohawk Tribe

                                       Steven M. Tulberg (Alexandra C. Page, Andrew I. Huff, of
                                       counsel), Indian Law Resource Center, Washington, D.C., for
                                       amicus curiae Tonawanda Band of Seneca Indians and Mohawk
                                       Nation



JOSÉ A. CABRANES, Circuit Judge:

       We are here confronted by land claims of historic vintage—the wrongs alleged occurred over

two hundred years ago, and this action is itself twenty-five years old—which we must adjudicate

against a legal backdrop that has evolved since the District Court’s rulings. The United States District

Court for the Northern District of New York (Neil P. McCurn, Judge), determined (1) that treaties

between the Cayuga Nation and the State of New York in 1795 and 1807 were not properly ratified by

the federal government and were thus invalid under the Nonintercourse Act, 25 U.S.C. § 177; and (2)


                                                   3
that none of defendants’ other arguments barred plaintiffs’ suit. After ruling in plaintiffs’ favor on

liability, the District Court conducted a jury trial on damages, which resulted in a verdict for plaintiffs

of approximately $36.9 million, representing the current fair market value of the land as well as fair

rental value damages for 204 years. The District Court then concluded, following a month-long

hearing, that plaintiffs were entitled to about $211 million in prejudgment interest, resulting in a total

award of $247,911,999.42.

        In another case raising land claims stemming from late-eighteenth-century treaties between

Indian tribes and the State of New York, the Supreme Court recently ruled that equitable

doctrines—such as laches, acquiescence, and impossibility—can be applied to Indian land claims in

appropriate circumstances. See City of Sherrill v. Oneida Indian Nation, 

, 1494 (2005).

Based on Sherrill, we conclude that the possessory land claim alleged here is the type of claim to which

a laches defense can be applied. Taking into account the considerations identified by the Supreme

Court in Sherrill and the findings of the District Court in the remedy stages of this case, we further

conclude that plaintiffs’ claim is barred by laches. Accordingly, we reverse the judgment of the District

Court and enter judgment for defendants.

                                            BACKGROUND

        Because of the disposition we reach here, we need not describe in great detail the long history

of relations between the Cayuga Nation and the State of New York. We set forth below a concise

description of the events underlying this lawsuit, as well as a more extended recounting of the case’s

procedural history.

        1. Historical Background

        Plaintiffs allege that from time immemorial until the late eighteenth century the Cayuga Nation

owned and occupied approximately three million acres of land in what is now New York State, a



                                                    4
swath of land approximately fifty miles wide that runs from Lake Ontario to the Pennsylvania border.

This action involves 64,015 acres of that land, encompassing the Cayuga’s “Original Reservation,” as

set forth in a treaty with the State of New York, concluded on February 25, 1789 (“1789 Treaty”). In

the 1789 Treaty, the Cayugas ceded all of their lands to New York, except the lands designated as the

“Original Reservation,” which consists of lands on the eastern and western shores of the northern end

of Cayuga Lake.

        Congress passed the first Indian Trade and Intercourse Act, known as the “Nonintercourse

Act,” in 1790, pursuant to Congress’s power under Article I, Section 8, clause 3 of the Constitution,

which gives Congress the power “to regulate Commerce . . . with the Indian Tribes.” Act of July 22,

1790, ch. 33, § 4, 1 Stat. 137, 138. As the Supreme Court described it, “the Act bars sales of tribal land

without the acquiescence of the Federal Government.” 

. Successive versions

of the Act have been continuously in force from that time to the present day. See Rev. Stat. § 2116, 25

U.S.C. § 177.

        On November 11, 1794, the Six Iroquois Nations1 entered the Treaty of Canandaigua with the

United States. 7 Stat. 44. This treaty acknowledged the Original Reservation the Cayugas retained in

the 1789 treaty with New York, and promised the Cayugas that the land would remain theirs until they

“chose to sell the same to the people of the United States who have the right to purchase.” 

7 Stat. at 45. On June 16, 1795, William Bradford, then Attorney General of the United States, issued

an opinion concluding that, under the 1793 version of the Nonintercourse Act, no Indian land sale

was valid, nor could the land claims of the Six Iroquois Nations be extinguished, except pursuant to a

treaty entered into by the Federal Government. See Cayuga Indian Nation v. Cuomo, 

,

1305 (N.D.N.Y. 1983) (“Cayuga I”).

        1
          This Confederation included the Cayugas, the Oneidas, the Mohawks, the Senecas, the Onondagas, and the
Tuscaroras. Cayuga Indian Nation v. Cuomo, 

, 1303 (N .D.N .Y. 1983) .


                                                        5
         On July 27, 1795, the Cayuga entered into a treaty with the State of New York in which the

State acquired the entire Original Reservation of the Cayugas (except for a three-square-mile-area on

the eastern shore of Cayuga Lake) in exchange for a promise that the State pay the Cayuga Nation

$1,800 annually in perpetuity. 

is some debate about whether a federal official who

signed the treaty as a witness was acting in a personal or official capacity, 

undisputed that this

treaty was never explicitly ratified by a treaty of the Federal Government. In 1807, the State of New

York purchased the Cayugas’ remaining three-square-mile-parcel for $4,800. 

Federal

Government never explicitly ratified this treaty.2

         2. Procedural History - Liability Phase

         Many years later, on November 19, 1980, the Tribe filed its complaint in this action, alleging

these facts and requesting that the Court “[d]eclare that plaintiffs are the owners of and have the legal

and equitable title and the right of possession” to all of the land in the Original Reservation and that

the Court “[r]estore plaintiffs to immediate possession of all portions of the subject land claimed by

any defendant or member of the defendant class and eject any defendant claiming their chain of title

through the 1795 and 1807 New York State ‘treaties.’” Plaintiffs also sought: (1) an accounting of all

tax funds paid by possessors of the lands; (2) trespass damages in the amount of the fair rental value

of the land for the entire period of plaintiffs’ dispossession; (3) all proceeds derived in the future in

connection with the removal or extraction of any natural resources to be placed in a trust fund for

plaintiffs’ benefit; (4) the costs of the action and attorneys’ fees; and (5) “such other and further relief

as the Court deems just.”

         Soon after filing the action, plaintiffs moved to certify a defendant class of landowners under



         2
           Defendants claim that the 1838 treaty of Buffalo Creek effectively ratified these treaties. Although we
ultimately need not reach this question, we note that, whatever it may do, the Treaty of Buffalo Creek neither mentions
Cayuga land or Cayuga title in Ne w Y ork, nor refers to the 1795 or 1807 treaties. See Treaty of Jan. 15, 1838, 7 Stat. 550.


                                                              6
Federal Rule of Civil Procedure 23(b)(1)(B). The District Court certified a defendant class with respect

to liability and named defendant Miller Brewing Company as representative of the defendant class. In

1981, the Seneca-Cayuga Tribe of Oklahoma was granted leave to intervene as plaintiff-intervenor and

filed a complaint in intervention that was in pertinent respects identical to the original complaint filed

by the Cayuga Nation of New York.

        Defendants moved to dismiss for lack of subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

After the District Court denied the motion to dismiss, and defendants filed their answer to the

complaint, plaintiffs moved for partial summary judgment, asking the Court to find the 1795 and 1807

treaties invalid under the Nonintercourse Act and federal common law and to determine that plaintiffs

were the current owners of the lands in question. The District Court found that plaintiffs constituted

“Indian tribes” and that they were entitled to sue under the Nonintercourse Act, but held that it could

not rule on whether the United States ratified the treaties as the record was not yet complete. Cayuga

Indian Nation v. Cuomo, 

, 942-43, 948 (N.D.N.Y. 1987) (“Cayuga II”) The District

Court also rejected defendants’ arguments that the suit was barred by various doctrines, including

election of remedies, res judicata, and collateral estoppel. 

        After further discovery, plaintiffs again moved for partial summary judgment, asking that the

Court find that the treaties had not been properly ratified. The District Court concluded that the

Nonintercourse Act requires of any land-conveyance treaty with an Indian tribe (1) the presence of

federal treaty commissioners at the signing of the treaty and (2) ratification, pursuant to the Treaty

Clause of the U.S. Constitution. Cayuga Indian Nation v. Cuomo, 

, 487 (N.D.N.Y. 1990)

(“Cayuga III”). The Court granted plaintiffs partial summary judgment on this issue, concluding that

there was no evidence that the treaties had been ratified pursuant to the Treaty Clause. 

                                                    7
        In separate opinions in 1991, the District Court rejected defendants’ remaining defenses of

abandonment and laches. Cayuga Indian Nation v. Cuomo, 

(N.D.N.Y. 1991) (“Cayuga

IV”); Cayuga Indian Nation v. Cuomo, 

(N.D.N.Y. 1991) (“Cayuga V”). The Court

determined that the “1794 Treaty of Canandaigua conferred recognized title to the Cayugas

concerning the land at issue” and that “proof of the plaintiffs’ physical abandonment of the property

at issue is irrelevant in a claim for land based upon reserved title to Indian land, for such title can only

be extinguished by an act of Congress.” Cayuga 

. With regard to laches, the

District Court concluded that Second Circuit precedent was clear that “claims brought by Indian

tribes in general, including the plaintiffs herein, should be held by courts to be timely, and therefore

not barred by laches, if, at the very least, such a suit would have been timely if the same had been

brought by the United States.” Cayuga 

(citing Oneida Indian Nation v. Oneida

County, 

, 538 (2d Cir. 1983)). The Court thus found plaintiffs’ action timely. 

        Following these rulings, the District Court granted partial summary judgment on liability to

plaintiffs against all defendants except the State of New York, which was excluded because it had

asserted a new Eleventh Amendment defense based on the then-recent Supreme Court decision in

Blatchford v. Native Village of Noatak, 

(1991). Cayuga 

n.2, 24. The

other defendants then moved to dismiss on the grounds that the State was an indispensable party.

        In response to the State’s Eleventh Amendment motion, the United States moved to intervene

in the lawsuit on behalf of itself and on behalf of plaintiffs. The complaint-in-intervention sought a

declaration that plaintiffs were entitled to possession of the land, ejectment of the current residents,

and damages and interest. The motion to intervene was granted in November 1992.

        After a stay of the proceedings for settlement discussions that lasted over three years, the

District Court concluded that the State was entitled to Eleventh Amendment immunity, but that its



                                                    8
officials could be sued for prospective relief. The Court denied the non-State defendants’ motion to

dismiss, rejecting their contention that the State was an indispensable party. Having ruled on all

liability issues, the Court noted that it “anticipate[d] receiving an application for certification of an

interlocutory appeal.” Defendants decided not to seek an interlocutory appeal.

        3. Procedural History - Damages Phase

        After the ruling for plaintiffs on all liability issues, a number of questions remained to be

decided at the damages phase. Defendants argued (1) that ejectment was not a proper remedy in the

case; (2) that plaintiffs should not be able to obtain prejudgment interest against the State; (3) that

damages should be limited to the loss suffered by the Cayugas at the time of the treaties, as measured

by the difference between the value received by the Cayugas and the fair market value of the lands at

that time; (4) that the lands should be valued as a single 64,000-acre tract rather than as smaller,

individual tracts; and (5) that damages should be based on a single valuation date of July 27, 1795.

        The District Court issued a series of rulings in 1999 to resolve these and other issues relating

to the damages proceedings. First, the District Court agreed with defendants that the land should be

valued as a single parcel (“4" above) and that damages should be determined by reference to the value

of the land on July 27, 1795 (“5" above). Cayuga Indian Nation v. Pataki, No. 80-CIV-930, 1999 U.S.

Dist. LEXIS 5228, at *18-19 (N.D.N.Y. Apr. 15, 1999) (“Cayuga VIII”). In that same ruling, the Court

found that plaintiffs’ potential damages consisted of damages at the time of the Treaties and the fair

rental value of the Cayugas’ loss of use and possession of the land for the years of dispossesion,

known as “mesne profits.” 

The Court determined that the award of prejudgment interest

was an issue for the Court, and not for the jury, and that the Court would decide issues related to

interest once the record had been further developed. 

& n.35.

        The Court next decided, on July 1, 1999, fully nineteen years after the filing of the complaint



                                                     9
seeking “immediate possession” of the land, that ejectment was not a proper remedy. Cayuga Indian

Nation v. Cuomo, No. 80-CIV-930, 

, at *97 (N.D.N.Y. July 1, 1999)

(“Cayuga X”). The Court found that “monetary damages will produce results which are as satisfactory

to the Cayugas as those which they could properly derive from ejectment.” 

Because

ejectment was the only relief plaintiffs were seeking against the individual State defendants, the Court

dismissed the claims against those defendants. 

        On October 8, 1999, the District Court ruled that the State of New York “could be deemed an

original or primary tortfeasor.” Cayuga Indian Nation v. Pataki, 

, 74 (N.D.N.Y. 1999)

(“Cayuga XI”). Consequently, the Court determined that “a single trial against the State of New York

as the sole defendant is the only practical way to proceed here.” 

As a result, the remedial

proceedings held in the District Court and discussed below pertain only to the State as defendant.

        The Court further ruled, on December 23, 1999, that it would not allow testimony related to

equitable issues to be presented to the jury and that all equitable issues would be reserved to the

Court. Cayuga Indian Nation v. Pataki, 

, 92 (N.D.N.Y. 1999) (“Cayuga XII”). The

Court decided that, because it had rejected ejectment as an available remedy, it would allow evidence

of current fair market value as a proper measure of damages. 

As a result of these rulings, the

District Court bifurcated the proceedings into (1) a jury trial to determine current fair market value

and rental damages and (2) a subsequent hearing on prejudgment interest and other equitable issues.

        A jury trial was held from January 18, 2000 through February 17, 2000. The parties’ experts

presented widely disparate estimates of the measure of plaintiffs’ damages. The jury was presented

with a Special Verdict Form that asked for a calculation of current fair market value of the subject

land and for a year-by-year breakdown of rental damages from 1795 to 1999. The jury was instructed

not to adjust rental damages to current day value, as all adjustments would be performed later by the



                                                   10
Court. On February 17, 2000, the jury returned a verdict finding current fair market value damages of

$35 million and total fair rental value damages of $3.5 million. In awarding the fair rental value

damages, the jury awarded the same rental value damages for each year from 1795 to 1999, in the

amount of $17,156.86. The jury gave the State a credit for the payments it had made to the Cayugas,

of about $1.6 million, leaving the total damages at this stage at approximately $36.9 million.

         The hearing on prejudgment interest and other equitable issues was held from July 17, 2000

through August 18, 2000. Eight expert witnesses testified, regarding both the historical context and

the assessment of prejudgment interest. Unsurprisingly, the experts reached substantially divergent

estimates of the prejudgment interest to which the Cayugas were entitled, ranging from approximately

$1.75 billion to zero (this counterintuitive calculation was based on the assumption that the jury

verdict needed to be “adjusted” because the jury had expressed its verdict in “constant 2000 dollars”).3

         On October 2, 2001, the District Court issued a Memorandum-Decision and Order on the

interest issue. Cayuga Indian Nation v. Pataki, 

(N.D.N.Y. 2001) (“Cayuga XVI”).

The District Court rejected both the “lowball” figure of the State’s expert and the stratospheric figure

of the plaintiffs’ expert and relied on the estimate of the United States’s expert, who had arrived at a

figure of $529,377,082. 

In doing so, the District Court took into account a number of

equitable considerations, including “(1) the passage of 204 years; (2) the failure of the U.S. to intervene

or to seek to protect the Cayuga’s interests prior to 1992; (3) the lack of fraudulent or calculated

purposeful intent on the part of the State to deprive the Cayuga of fair compensation for the lands

ceded by them in the 1795 and 1807 treaties; and (4) the financial factors enumerated by [the State’s

expert].” 

The District Court noted that these financial factors encompassed a number of

considerations, including the question whether the Cayugas had access to financial markets or “the

         3
           The expert actually testified that the Cayugas owed the S tate approxim ately $7.6 million, though the State
assured the C ourt that it would not attem pt to collect from the C ayugas.


                                                            11
ability, knowledge, or skills to take advantage of such markets, especially in the early years,” the failure

of the verdict to take into account the Cayugas’ expenses over the past 204 years, the fact that the

unimproved claim area had no rental value until the twentieth century, and the fact that compounding

interest over 204 years is at best “a theoretical exercise,” because it ignores the history of banking in

this country and is extremely unlikely to occur in a real-world market. 

In light of all these

factors, the District Court adjusted downward the interest estimate by 60 percent, resulting in a

prejudgment interest award of $211,000,326.80 and a total award of $247,911,999.42. 

The

District Court entered judgment that day.

        The District Court addressed various post-judgment motions on March 11, 2002. Cayuga Indian

Nation v. Pataki, 

(N.D.N.Y. 2002) (“Cayuga XVII”). The Court first denied the

State’s motions for judgment as a matter of law and for a new trial. 

The Court granted

the State’s motion “to amend the judgment to provide that it runs jointly in favor of the U.S., as

trustee, and the tribal plaintiffs,” but denied the State’s motion “to amend the judgment to run

exclusively in favor of the U.S.” 

Finally, the Court denied both parties’ motions for

recalculation of the prejudgment interest and plaintiffs’ motion for reconsideration of the Court’s

earlier decision rejecting ejectment as a remedy. 

17, 2002, the District Court granted the parties’ motions for permission to appeal and

certified for appeal, pursuant to 28 U.S.C. § 1292(b), the issues related to liability and remedies. We

granted the District Court’s certification of issues for immediate appellate resolution on December 11,

2002.

                                             DISCUSSION

        The Supreme Court’s recent decision in City of Sherrill v. Oneida Indian Nation, 

(2005), has dramatically altered the legal landscape against which we consider plaintiffs’ claims. Sherrill



                                                    12
concerned claims by the Oneida Indian Nation, another of the Six Iroquois Nations, that its

“acquisition of fee title to discrete parcels of historic reservation land revived the Oneidas’ ancient

sovereignty piecemeal over each parcel” and that, consequently, the Tribe need not pay property taxes

to the City of Sherrill. 

The Supreme Court rejected this claim, concluding that “the Tribe

cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.” 

Sherrill to hold that equitable doctrines, such as laches, acquiescence, and

impossibility, can, in appropriate circumstances, be applied to Indian land claims, even when such a

claim is legally viable and within the statute of limitations. See, e.g., 

(“[T]he distance from

1805 to the present day, the Oneidas’ long delay in seeking equitable relief against New York or its

local units, and developments in the city of Sherrill spanning several generations, evoke the doctrines

of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance

this suit seeks unilaterally to initiate.”). Sherrill clarified that the decision does not “disturb” the

Supreme Court’s holding in County of Oneida v. Oneida Indian Nation, 

, 229-30 (1985)

(“Oneida II”), which allowed Indian Tribes to seek fair rental value damages for violation of their

possessory rights following an ancient dispossession. See 

(“In sum, the

question of damages for the Tribe’s ancient dispossession is not at issue in this case, and we therefore

do not disturb our holding in Oneida II.”). Because the Supreme Court in Oneida II expressly declined

to decide whether laches would apply to such claims, see Oneida 

, 253 n.27, this

statement in Sherrill is not dispositive of whether laches would apply here.

        The Court’s characterizations of the Oneidas’ attempt to regain sovereignty over their land

indicate that what concerned the Court was the disruptive nature of the claim itself. See 

(“[W]e decline to project redress for the Tribe into the present and future, thereby disrupting the

governance of central New York’s counties and towns.”); 

(“This long lapse of time, during



                                                      13
which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and

the attendant dramatic changes in the character of the properties, preclude [the Tribe] from gaining

the disruptive remedy it now seeks.”); 

n.11 (“[The Oneidas’] claim concerns grave, but

ancient, wrongs, and the relief available must be commensurate with that historical reality.”). Although

we recognize that the Supreme Court did not identify a formal standard for assessing when these

equitable defenses apply, the broadness of the Supreme Court’s statements indicates to us that Sherrill’s

holding is not narrowly limited to claims identical to that brought by the Oneidas, seeking a revival of

sovereignty, but rather, that these equitable defenses apply to “disruptive” Indian land claims more

generally.

        In their post-Sherrill briefs, both the Cayugas and the United States maintain that the Sherrill

decision “does not affect the award of monetary damages,” Cayuga Letter Br. at 1, and “concerned

particular equitable remedies” which are not at issue here as “the district court confined its judgment

to an award of damages.” United States Letter Br. at 6. Our reading of Sherrill suggests that these

assertions do not present an entirely accurate assessment of its effect on the present case. While the

equitable remedy sought in Sherrill—a reinstatement of Tribal sovereignty—is not at issue here, this

case involves comparably disruptive claims, and other, comparable remedies are in fact at issue.

        Despite the eventual award by the District Court of monetary damages, we emphasize that

plaintiffs’ claim is and has always been one sounding in ejectment; plaintiffs have asserted a continuing

right to immediate possession as the basis of all of their claims, and have always sought ejectment of

the current landowners as their preferred form of relief. As noted above, in their complaint in this case

the Cayugas seek “immediate possession” of the land in question and ejectment of the current

residents. Indeed, the District Court noted early in the litigation that it was “clear” that the complaint

“presents a possessory claim, basically in ejectment.” Cayuga 

(internal quotation



                                                   14
marks omitted).4 Plaintiffs continue to maintain, on appeal in this Court, that ejectment is their

preferred remedy. It was not until 1999, nineteen years after the complaint was filed, and eight years

after the District Court’s decision on liability, that the District Court determined that the ejectment

remedy sought by the Cayugas was, “to put it mildly, . . . not an appropriate remedy in this case.”

Cayuga X, 

, at *97. The District Court thus effectively “monetized” the

ejectment remedy in concluding that “monetary damages will produce results which are as satisfactory

to the Cayugas as those which they could properly derive from ejectment.” 

         The nature of the claim as a “possessory claim,” as characterized by the District Court,

underscores our decision to treat this claim like the tribal sovereignty claims in Sherrill. Under the

Sherrill formulation, this type of possessory land claim—seeking possession of a large swath of central

New York State and the ejectment of tens of thousands of landowners—is indisputably disruptive.

Indeed, this disruptiveness is inherent in the claim itself—which asks this Court to overturn years of

settled land ownership—rather than an element of any particular remedy which would flow from the

possessory land claim. Accordingly, we conclude that possessory land claims of this type are subject to

the equitable considerations discussed in Sherrill.

         This conclusion is reinforced by the fact that the Sherrill opinion does not limit application of

these equitable defenses to claims seeking equitable relief. We recognize that ejectment has been

characterized as an action at law, as opposed to an action in equity. See, e.g., New York v. White, 

, 338 (2d Cir. 1975) (discussing “the legal remedy of ejectment”); but see Bowen v. Massachusetts,

, 893 (1988) (stating in dicta that “[o]ur cases have long recognized the distinction

between an action at law for damages—which are intended to provide a victim with monetary

compensation for an injury to his person, property, or reputation—and an equitable action for specific

         4
           Plaintiffs took the po sition in the D istrict Cou rt that monetary damages would not adequately compensate
them for tw o hu ndred years of w rongful occupa tion. See Cayuga V III, 1999 U.S. Dist. LE XIS 5228, at *5.


                                                           15
relief —which may include an order providing for . . . ejectment from land . . . .”). Plaintiffs urge us to

conclude that, as a legal remedy, ejectment is not subject to equitable defenses, relying, inter alia, on the

Supreme Court’s statement in Oneida II that “application of the equitable defense of laches in an

action at law would be novel indeed.” Oneida 

n.16. In response to this claim, we

note Sherrill’s that “[n]o similar novelty exists when the specific relief [the Tribe] seeks would project

redress . . . into the present and 

n.14. Whether characterized as an action at

law or in equity, any remedy flowing from this possessory land claim, which would call into question

title to over 60,000 acres of land in upstate New York, can only be understood as a remedy that would

similarly “project redress into the present and future.”5

          One of the few incontestable propositions about this unusually complex and confusing area of

law is that doctrines and categorizations applicable in other areas do not translate neatly to these

claims. See, e.g., Oneida 

(holding that the general law favoring the borrowing of

state law limitations-periods does not apply to federal Indian land claims); Mohegan Tribe v. Connecticut,

, 614-15 & n.3 (2d Cir. 1980) (holding that adverse possession does not run against

Indian land). This proposition was well stated by the District Court:

          As the parties are well aware, the Cayugas are seeking to enforce a “federal common
          law” right of action for violation of their possessory property rights, as well as
          seeking to vindicate their rights under the Nonintercourse Act. Unfortunately, that

          5
             We note that even though ejectment has traditionally been considered an action at law, numerous jurisdictions
have recognized the applicability of equitable defenses, including laches, in an action for ejectment based on a claim of
legal title or prior possession, regardless of w hether dam ages or an order of possession was sought. See, e.g., Pankins v.
Jackson, 

, 848 (Mo. Ct. App. 1995) (noting that ejectment is claim of legal right of possession, considering
whether lach es “d efeated ” “plaintiff’s right of possession,” an d co nclu ding it did not because the d elay was not th e fau lt
of plaintiff and defend ants w ere not prejudice d); Jansen v. Clayton, 

, 51-52 (Tenn. Ct. App. 1991) (upholding
dism issal of ejectment action because of laches and noting that “[a]lth ough ejectm ent is an action at law, equ itable
defenses m ay bar pu rely legal claim s”); McR orie v. Query, 

, 319 (N.C. Ct. App. 1977) (“[Plaintiffs] contend
that the de fense of laches is no t applicable here because this is an action in ejectm ent. T hey cite no authority for this
position, and we find none.”); Miller v. Siwicki, 

, 323 (Ill. 1956) (holding laches barred ejectment action
brought after 22-year delay and specifying that laches, “even though an equitable defense, can be interposed in an
ejectment action.”); Olson v. Williams, 151 N.W . 1043, 1044-45 (Mich. 1915) (enjoining pending ejectm ent action becau se
barred by laches); Loomis v. Rosenthal, 

, 61 (Or. 1899) (holding that plaintiffs’ “laches [was] so gross as to preclude
their recovery of the land.”) .


                                                                16
        Act is silent as to remedies, thus leaving courts to resort to the common law as a
        means of “assisting . . . in formulating a statutory [Nonintercourse Act] damage
        remedy.” Therefore, in molding a remedy in the present case and in structuring a
        manageable trial, in the court’s opinion it may well be appropriate, and indeed
        necessary, to fashion a federal common law remedy, which although having some
        resemblance to remedies available for common law torts such as trespass, is a
        remedy uniquely tailored to fit the needs of this unparalleled land claim litigation. As
        the discussion below demonstrates, however, and has been evident for some time as
        the issue of remedies has come to dominate this litigation, common law principles,
        whether tort-based or not, are not readily transferrable to this action.

Cayuga 

(internal citations, quotations, and emphasis omitted). In light of

the unusual considerations at play in this area of the law, and our agreement that ordinary common

law principles are indeed “not readily transferrable to this action,” we see no reason why the equitable

principles identified by the Supreme Court in Sherrill should not apply to this case, whether or not it

could be technically classified as an action at law.

        Thus, whatever the state of the law in this area before Sherrill, see Oneida 

n.27

(reserving “the question whether equitable considerations should limit the relief available” in these

cases); 

(deciding not to reach the question of laches because defendants had waived it),

we conclude, for the above-stated reasons, that, after Sherrill, equitable defenses apply to possessory

land claims of this type.

        Our reading is not in conflict with the Supreme Court’s decision in Oneida Indian Nation v.

County of Oneida, 

(1974) (“Oneida I”), where the Court specifically found federal

jurisdiction to hear such possessory claims, including those in ejectment. 

The Court there

noted that “the complaint in this case asserts a present right to possession under federal law. The

claim may fail at a later stage for a variety of reasons; but for jurisdictional purposes, this is not a case

where the underlying right or obligation arises only under state law and federal law is merely alleged as

a barrier to its effectuation.” 

The holding of Sherrill thus addresses the question reserved in

Oneida II and follows from Oneida I’s holding by providing that these possessory claims are subject to


                                                       17
equitable defenses.

         Inasmuch as the instant claim, a possessory land claim, is subject to the doctrine of laches, we

conclude that the present case must be dismissed because the same considerations that doomed the

Oneidas’ claim in Sherrill apply with equal force here. These considerations include the following:

“[g]enerations have passed during which non-Indians have owned and developed the area that once

composed the Tribe’s historic reservation,” 

; “at least since the middle years

of the 19th century, most of the [Tribe] have resided elsewhere,” id.; “the longstanding, distinctly non-

Indian character of the area and its inhabitants,” id.; “the distance from 1805 to the present day,” 

; “the [Tribe’s] long delay in seeking equitable relief against New York or its local units,” id.; and

“developments in [the area] spanning several generations.” Id.; see also 

(“[T]his Court has

recognized the impracticability of returning to Indian control land that generations earlier passed into

numerous private hands.”) (citing Yankton Sioux Tribe v. United States, 

, 357 (1926) (“It is

impossible . . . to rescind the cession and restore the Indians to their former rights because the lands

have been opened to settlement and large portions of them are now in the possession of innumerable

innocent purchasers . . . .”)). We thus hold that the doctrine of laches bars the possessory land claim

presented by the Cayugas here.6 The District Court, after serious consideration of this exact question,

explicitly agreed with this assessment. Cayuga X, 

, at *86 (“Thus, even

though some delay on the part of the Cayugas is explainable, in the context of determining whether

ejectment is an appropriate remedy, . . . the delay factor tips decidedly in favor of the defendants.”).

         To summarize: the import of Sherrill is that “disruptive,” forward-looking claims, a category


         6
            Sherrill effectively overruled our Court’s holding in Oneida Indian N ation v. New York, 

, 1084 (2d
Cir. 1982), that lac hes and other time-ba r defenses should be unavailable and tha t “suits by trib es should be held tim ely if
such suits would have been timely if brought by the United States.” We note that in a subsequent Oneida case, Judge
Newm an, while writing for the Court, stated that “[t]he writer accepts the prior panel’s rejection of a laches defense as
the law of the case, though would find the issue to be a substantial one if it were open.” Oneida Indian N ation v. New York,
860 F .2d 1145, 114 9 n.1 (2d Cir. 198 8).


                                                               18
exemplified by possessory land claims, are subject to equitable defenses, including laches. Insofar as

the Cayugas’ claim in the instant case is unquestionably a possessory land claim, it is subject to laches.

The District Court found that laches barred the possessory land claim, and the considerations

identified by the Supreme Court in Sherrill mandate that we affirm the District Court’s finding that the

possessory land claim is barred by laches. The fact that, nineteen years into the case, at the damages

stage, the District Court substituted a monetary remedy for plaintiffs’ preferred remedy of ejectment7

cannot salvage the claim, which was subject to dismissal ab initio. To frame this point a different way: if

the Cayugas filed this complaint today, exactly as worded, a District Court would be required to find

the claim subject to the defense of laches under Sherrill and could dismiss on that basis.

         Although we conclude that plaintiffs’ ejectment claim is barred by laches, we must also

consider whether their other claims, especially their request for trespass damages in the amount of the

fair rental value of the land for the entire period of plaintiffs’ dispossession, are likewise subject to

dismissal. In assessing these claims, we must recognize that the trespass claim, like all of plaintiffs’

claims in this action, is predicated entirely upon plaintiffs’ possessory land claim, for the simple reason

that there can be no trespass unless the Cayugas possessed the land in question. See, e.g., West 14th

Street Commercial Corp. v. 5 West 14th Owners Corp., 

, 195 (2d Cir. 1987) (holding that a

trespass cause of action must allege possession). Inasmuch as plaintiffs’ trespass claim is based on a

violation of their constructive possession, it follows that plaintiffs’ inability to secure relief on their

ejectment claim alleging constructive possession forecloses plaintiffs’ trespass claim. In other words,

because plaintiffs are barred by laches from obtaining an order conferring possession in ejectment, no

basis remains for finding such constructive possession or immediate right of possession as could


         7
            After finding for plaintiffs on liability and ruling out ejectment as a remedy, the District Court seems to have
folded all of the plaintiffs’ requests for relief into its award of damages, without separate consideration of any of the
requests for relief. See Cayuga 

. Our conclusion that the award of damages stems entirely from the
ejectment claim follows from the District Court’s approach.


                                                            19
support the damages claimed. Because the trespass claim, like plaintiffs’ other requests for relief,

depends on the possessory land claim, a claim we have found subject to laches, we dismiss plaintiffs’

trespass claim, and plaintiffs’ other remaining claims, along with the plaintiffs’ action in ejectment.

        We recognize that the United States has traditionally not been subject to the defense of laches.

See United States v. Summerlin, 

, 416 (1940). However, this does not seem to be a per se rule.

See, e.g., Clearfield Trust Co. v. United States, 

, 369 (1943) (holding that laches is a defense to

the United States in its capacity as holder of commercial paper). Judge Posner has aptly noted that

“the availability of laches in at least some government suits is supported by Supreme Court decisions,

notably Occidental Life Ins. Co. v. EEOC, 

, 373 (1977); Heckler v. Community Health Services of

Crawford County, Inc., 

, 60-61 (1984); and Irwin v. Department of Veterans Affairs, 

,

95-96 (1990), that refuse to shut the door completely to the invocation of laches or estoppel (similar

doctrines) in government suits.” United States v. Administrative Enterprises, Inc., 

, 672-73 (7th

Cir. 1995). Indeed, the Seventh Circuit has made clear that, in appropriate circumstances, laches can

apply to suits by the federal government. See NLRB v. P*I*E Nationwide, Inc., 

, 894 (7th

Cir. 1990) (“Following dictum in Occidental Life and the general principle noted earlier that government

suits in equity are subject to the principles of equity, laches is generally and we think correctly assumed

to be applicable to suits by government agencies as well as by private parties.”) (internal citations

omitted).

        Notwithstanding our conclusion that the United States as plaintiff-intervenor is subject to

laches in this case, we do not purport to set forth broad guidelines for when the doctrine might apply.

Rather, we follow the Seventh Circuit, which, after canvassing the case law, noted in Administrative

Enterprises that there are three main possibilities for when laches might apply against the United States:

first, “that only the most egregious instances of laches can be used to abate a government suit”;



                                                      20
second, “to confine the doctrine to suits against the government in which . . . there is no statute of

limitations”; and third, “to draw a line between government suits in which the government is seeking

to enforce either on its own behalf or that of private parties what are in the nature of private rights,

and government suits to enforce sovereign rights, and to allow laches as a defense in the former class

of cases but not the latter.” Administrative 

(internal citations omitted). We

need not decide which of these three possibilities might govern because this case falls within all three.

First, given the relative youth of this country, a suit based on events that occurred two hundred years

ago is about as egregious an instance of laches on the part of the United States as can be imagined;

second, though there is now a statute of limitations, see 28 U.S.C. § 2415(a), there was none until

1966—i.e., until one hundred and fifty years after the cause of action accrued; and third, the United

States intervened in this case to vindicate the interest of the Tribe, with whom it has a trust

relationship.8 Accordingly, we conclude that whatever the precise contours of the exception to the rule

against subjecting the United States to a laches defense, this case falls within the heartland of the

exception.

         We acknowledge that we stated in Oneida Indian Nation v. New York, 

(2d Cir.

1982), that “[i]t is clearly established that a suit by the United States as trustee on behalf of an Indian

tribe is not subject to state delay-based defenses.” 

That opinion, however, left open the

possibility of asserting delay-based defenses founded on federal law in these circumstances. See 

“[t]here remains the question whether a delay-based defense founded on federal law may

be asserted” and concluding that because the suit was within the statute of limitations of 28 U.S.C. §

2415, the suit was timely in any case). In light of Sherrill, which, as noted above, we read to have


         8
            Our holding here thus does not disturb our statement in United States v. A ngell, 

3, 338 (2d C ir.
2002), that “laches is not available against the federal government when it undertakes to enforce a public right or protect
the public interest,” inasmuch as this case does not involve the enforcement of a public right or the protection of the
pub lic interest.


                                                            21
substantially altered the legal landscape in this area, we conclude that the federal law of laches can

apply against the United States in these particular circumstances.

        The Cayugas and the United States highlight the District Court’s findings, in deciding whether

to award prejudgment interest, that the Cayugas were not “responsible for any delay in bringing this

action” and that the “delay was not unreasonable, insofar as the actions of the Cayuga are concerned.”

Cayuga Letter Br. at 3, United States Letter Br. at 3. We acknowledge these findings, but do not

believe they are dispositive for our consideration of the laches question. The equitable considerations

relevant to an assessment of a possessory land claim—which is precisely what this case was from the

outset—differ dramatically from the equitable considerations in a claim for prejudgment interest,

which is what the case had become at the time the District Court made these findings. The District

Court itself, as discussed above, found that laches barred the Cayugas’ preferred remedy of ejectment.

Indeed, the District Court noted that “[r]egardless of when the Cayugas should have or could have

commenced this lawsuit, the court cannot overlook the prejudicial consequences which the defendants

would sustain if the court were to order ejectment,” and found that the “prejudice factor” was “a

factor which is far too important to ignore.” Cayuga X, 

, at *85-86. In

light of these findings, and the Supreme Court’s ruling in Sherrill, we see no need to remand to the

District Court for a determination of the laches question.

        Our decision to reverse the judgment of the District Court and enter judgment for defendants

should in no way be interpreted as a reflection on the District Court’s efforts and rulings in this case.

We recognize and applaud the thoughtful and painstaking efforts, over many years, of Judge Neil P.

McCurn, who presided over this and related land claims in upstate New York with fairness and due

regard to the rights and interests of all parties as well as with a keen appreciation of the complexities

of the subject matter and of the relevant law. Our decision is based on a subsequent ruling by the



                                                   22
Supreme Court, which could not be anticipated by Judge McCurn in his handling of this case over

more than twenty years.

       The judgment of the District Court is REVERSED and judgment is entered for defendants.




                                               23
JANET C. HALL, District Judge, dissenting in part and concurring in part in the judgment:

        While City of Sherrill v. Oneida Indian Nation, 

(2005), has an impact on this case, it

does not compel the conclusion that the plaintiffs are without any remedy for what the District Court

found to be the illegal transfer of their land. My understanding of City of Sherrill is that it supports the

majority’s conclusion that the plaintiffs cannot obtain ejectment of those currently in possession of the

land which was, over 200 years ago, the Cayuga Nation’s Original Reservation. However, based on

the nature of the claims long asserted in this case, the elements of the defense of laches, and the

language and precedent relied on in City of Sherrill, I cannot join the majority in its conclusion that

laches bars all of the plaintiffs’ remedies, including those for money damages. Therefore, I

respectfully dissent in part and concur in part in the judgment.

I.      Procedural History

        The majority sets forth an excellent summary of the extensive background to this appeal.

There are, however, a few procedural aspects of the record that bear noting.

        The history of this case makes clear that the Cayuga plaintiffs1 have, from its filing, asserted

multiple causes of action and sought multiple remedies. The complaint states a claim, inter alia, for

trespass damages. The Cayuga plaintiffs allege that "[a]ll of the defendants are in trespass" and that

"[t]he defendants are keeping plaintiffs out of possession of their land in violation of the common law

and 25 U.S.C. §177 (The Non-Intercourse Act)." Cayuga Indian Nation Compl. at ¶ 50. The Cayuga

plaintiffs sought several forms of relief, including declaratory relief, ejectment, an accounting, and

trespass damages for the fair rental value of the land. It bears noting that the statute of limitations

established by Congress did not expire until approximately three years following the date this action

was filed. 28 U.S.C. § 2415(a) ("for those claims that are on either of the two lists published pursuant


        1
            "Cayuga plaintiffs" refers collectively to the Cayuga Indian National and the Seneca-Cayuga Tribe.


                                                           24
to the Indian Claims Limitations Act of 1982, any right of action shall be barred unless the complaint

is filed within (1) one year after the Secretary of the Interior has published in the Federal Register a

notice rejecting such claim . . ."); see also 48 Fed. Reg. 13920 (Mar. 31, 1983) (listing Cayuga’s

"Nonintercourse Act Land Claim"); see also County of Oneida v. Oneida Indian Nation of N.Y., 

, 243 (1985) ("Oneida II") ("So long as a listed claim is neither acted upon nor formally rejected by

the Secretary, it remains live.")

        While the majority may be correct that "ejectment is [the plaintiffs’] preferred remedy," Maj.

Op. at __, there is certainly nothing in the record to suggest that the Cayuga plaintiffs relinquished

their claims for money damages. See, e.g., Cayuga Indian Nation v. Cuomo, 

, 1305-06

(N.D.N.Y. 1983) ("Cayuga I") ("With respect to the common law bases for their claim, references are

made in plaintiffs’ papers to ‘ejectment’, ‘trespass’, ‘waste’ and ‘conversion’, either as analogous forms

of action or as indices of damages."). Indeed, federal common law provides the Cayuga plaintiffs with

a variety of remedial theories. "The Supreme Court has recognized a variety of federal common law

causes of action to protect Indian lands from trespass, including actions for ejectment, accounting for

profits, and damages." U.S. v. Pend Oreille Pub. Util. Dist. No. 1, 

, 1549 n.8 (9th Cir. 1994),

cert. denied, 

(1995). The District Court found that, "the plaintiffs are not specifying a

single source for their substantive possessory right, or a single source for their right of action" and

read the complaint and the plaintiffs’ papers to state a claim "derived from the Nonintercourse Act

itself or from federal common law." Cayuga 

. Such a claim has been recognized

to include as a remedy a monetary award for damages. Oneida 

. Thus, the

plaintiffs here have sought money damages from the filing of this case.

        The District Court addressed the application of equitable defenses early in the case, when it

considered the non-state defendants’ argument "that the equitable remedies of rescission and



                                                    25
restitution are no longer available where the use and the value of the land has changed drastically, and

where it is held by innocent purchasers."2 Cayuga 

. The court concluded on the

basis of Second Circuit precedent that, while laches did not bar the Cayuga plaintiffs’ claims, it may

later become relevant with respect to the relief sought. 

District Court held that the 1795 and 1807 land conveyances to New York State

were invalid, Cayuga Indian Nation v. Cuomo, 

, 493 (N.D.N.Y. 1990) ("Cayuga III"), the

District Court again faced the question of laches. Cayuga Indian Nation v. Cuomo, 

, 20

(N.D.N.Y. 1991) ("Cayuga V"). However, the District Court again relied on pre-City of Sherrill

precedent to find that the action had been filed timely and that laches did not apply. 

(citing Oneida Indian Nation of New York v. Oneida County, 

, 538 (2d Cir. 1983); Oneida Indian

Nation of New York v. New York, 

, 1084 (2d Cir. 1982)).

          On November 5, 1992, the United States filed a motion to intervene. It did so both on its

own behalf and as trustee to the tribe. In its Answer to the United States’ Complaint in Intervention,

which, inter alia, sought trespass damages, the State alleged that the common law defense of laches

barred the claims of and relief sought by the United States. The District Court never reached the

question of whether laches could be asserted against the United States in this case because the parties

stipulated that the court’s previous rejection of the defense as to the other plaintiffs would apply with

equal force as to the United States.

          Following the District Court’s grant of partial summary judgment on the question of liability,

the defendants then moved to preclude ejectment as a remedy. The court found "that from the outset

ejectment is one of several remedies which the Cayugas have been seeking, and their claims also have



          2
             Notably, at that time, the defendants did not raise the defense of laches, an equitable defense, to any of the
plaintiffs’ non-eq uitable claims. Cayuga 

(discussing application of d elay-ba sed d efense s to
availability of eq uitable rem edies of rescission and restitution).

                                                                26
been framed in terms of ejectment." Cayuga Indian Nation v. Cuomo, 

, at

*58 (N.D.N.Y. July 1, 1999) ("Cayuga X"). Following the reasoning in United States v. Imperial

Immigration Dist., 

(S.D. Cal. 1992), the District Court treated the ejectment remedy

as a request for a permanent injunction. The court considered the factors iterated by the Restatement

(Second) of Torts for application to requests for injunctions against trespass. Cayuga X, 1999 U.S.

Dist. LEXIS 10579, at *62-63. The District Court did so because, as noted in Imperial Immigration, "an

equitable analysis is appropriate before issuing any final orders other than for monetary 

(quoted in Cayuga X, 

, at *62) (emphasis added).

          After considering the interest to be protected, the relative adequacy of various remedies, delay,

misconduct, and relative hardship, the interests of third parties, and the practicability of an injunction,

see Restatement (Second) of Torts § 936(1)(a)-(g), the District Court granted the defendants’ motion to

preclude ejectment as a remedy.3 Cayuga X, 

, at *99. The court then

dismissed those defendants against whom the plaintiffs had sought ejectment and no other remedies.

against whom the plaintiffs had sought other remedies remained in the case.

While the majority states that the District Court "monetized" the remedy, supra at 15, as I understand

the term, it is only partially correct.4 Instead, it rejected an ejectment remedy based on equitable

considerations, including the remedial adequacy of money damages, and allowed the plaintiffs to

pursue other remedies. 5




          3
           Thus, contrary to the m ajority’s assertion, the District Court did not find "that laches barred the possessory
claim," Maj. Op. at __, but rather concluded that equitable considerations prevented the award of the equitable remedy
of po ssession.

          4
              Fair rental value damages, as a monetary remedy, had been sought since the filing of the case.

          5
            The power of a court sitting in equity to award monetary relief as, or in place of, an equitable remedy has
long been recognized. Cathcart v. Robinson, 30 U .S. 264, 278 (1831) (M arshall, C.J.); see also Mora v. United States, 

, 15 9-160 (2d C ir. 1992).

                                                               27
II.      Application of Laches to the Plaintiffs’ Claims for Damages

         The issue before this court – "the application of a nonstatutory time limitation in an action for

damages" – has not been addressed by the Supreme Court. See City of Sherrill, 125 S.Ct at 1494 n.14

(citing Oneida 

6). To extend this defense to the Tribe’s claim for money damages

would be "novel indeed." Oneida 

n.16. The majority argues that, "[o]ne of the few

incontestable propositions about this unusually complex and confusing area of law is that doctrines

and categorizations applicable in other areas do not translate neatly to these claims."7 Maj. Op. at __

Such complexity is best addressed by relying on relevant precedent and established principles.

Congressional action and centuries of precedent with regard to both Indian land claims and

foundational distinctions between rights and remedies, coercive relief and damages, and legal claims

and equitable relief, should guide the attempt to resolve this historic dispute.

         The plaintiffs here seek relief under two theories, ejectment and trespass. As noted, all claims

were brought prior to expiration of the relevant statute of limitations. Historically, both ejectment and

trespass are actions at law. Dan B. Dobbs, Law of Remedies §§ 5.1, 5.10(1) (2d ed. 1993). Unless a

party’s delay amounts to either an estoppel or waiver, it does not bar a party’s access to remedies at

law. 

2.4(4) ("When laches does not amount to estoppel or waiver, it does not ordinarily bar

legal claims, only equitable remedies."). Furthermore, laches is not a complete defense to a claim.

"Because laches is based on prejudice to the defendant, the bar it raises should be no broader than the



         6
            Although the Oneida II majority did not re ach the question, it did ob serve that "it is far from clear that this
[laches] defense is available in suits such as this one [for money damages], . . . ." Oneida 

. The Court
further noted that "application of the equitable defense of laches in an action at law would be novel indeed." 

n.16.

         7
             The cases cited by the majority in support of this point, to the extent that they suggest that Indian land claims
are to be treated different from non-Indian claims, strongly suggest that Indian claims are entitled to more protection,
rather than less, as a result of strong federal po licy protecting tribal title from application of state law. See Mohegan Tribe
v. Connecticut, 

, 614-15 (2d Cir. 1980); Oneida 

.

                                                              28
prejudice shown." 

and Laches

        An action for ejectment generally seeks two remedies, restoration of possession and damages

equivalent to the fair market rent for the period the plaintiff was wrongfully out of possession,

sometimes referred to as mesne profits. 

5.10(1). Reinstatement of one’s possessory interest in

land is typically the most salient of the two remedies. It is hardly surprising, therefore, that some

jurisdictions have chosen to make the doctrine of laches available to defendants in ejectment actions

where a coercive remedy is sought. See Maj. Op. at __. New York courts have held, for example, that

"[a]n equitable defense is good in ejectment." Dixey v. Dixey, 

, 354 (2d Dep’t 1921)

(citing Phillips v. Gorham, 

(1858)).

        The defense of laches pertains only to the remedy sought, not the cause of action itself. The

elements of laches are both delay and prejudice. City of 

("laches, a doctrine

focused on one side's inaction and the other's legitimate reliance, may bar long-dormant claims for

equitable relief"); Kansas v. Colorado, 

, 687 (1995) ("The defense of laches requires proof of

(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party

asserting the defense." (internal quotations omitted)); Penn Mut. Life Ins. Co. v. City of Austin, 

, 698 (1898) ("The reason upon which the rule [of laches] is based is not alone the lapse of time

during which the neglect to enforce the right has existed, but the changes of condition which may

have arisen during the period in which there has been neglect."); see also Fred F. Lawrence, A Treatise on

the Substantive Law of Equity Jurisprudence, §1037 (1929) ("Being, like all other equitable relief, purely

protective, it is not to be inferred from delay alone, but rather from the consequences which may

under the circumstances flow from it."). The nature of the remedy sought will necessarily change the

court’s analysis of the effect of delay. "[E]quity may, in the exercise of its own inherent powers, refuse


                                                     29
relief where it is sought after undue and unexplained delay, and when injustice would be done, in the

particular case, by granting the relief asked." Abraham v. Ordway, 

, 420 (1895) (emphasis

added). "[L]aches is not, like limitation, a mere matter of time; but principally a question of the

inequity of permitting the claim to be enforced." Galliher v. Cadwell, 

, 373 (1892). Thus,

the application of the equitable defense of laches is, by its nature and function, confined by the

particular prejudice caused by the remedy.

          However, where a plaintiff seeks ejectment damages, rather than restoration of a possession

interest, application of the doctrine of laches to such a money damage claim is rarely if ever justified.

Even where reinstatement of possession is disruptive, attendant damage claims are not similarly

disruptive. It is axiomatic that a menu of remedies, some mutually exclusive, may be associated with

the same right and that, in different factual situations, different remedies will be appropriate. Here,

the plaintiffs’ claims for possession and for fair rental value damages should be treated separately.

While the element of delay found in connection with application of the defense to the possession

remedy is equally present with regard to the money damages remedy, there is no corresponding

prejudice to the defendant New York State ("State") in connection with an award of money damages.

The bar of laches does not rise high enough to bar the money judgment here. See Dobbs, supra, §

2.4(4).

          Determining that the coercive remedy of restoration of possession is barred by laches requires

a fact-intensive inquiry regarding the disruptiveness of that remedy. In City of Sherrill, for example, the

Court found that the defendants in that case had "justifiable expectations" which were "grounded in

two centuries of New York’s exercise of regulatory 

. The Supreme

Court held that the remedy sought by the Oneida Indian Nation -- the reassertion of sovereignty

resulting in "a checkerboard of state and tribal jurisdiction" over a checkerboard of land -- was


                                                   30
disruptive to justifiable expectations regarding the state, and therefore local, regulatory authority over

territory. 

The City of Sherrill Court concluded, in the face of two hundred years of

sovereign control by the State of New York and its municipalities, that the reassertion of tribal

sovereignty would be "disruptive." 

        City of Sherrill would thus support a finding that restoration of possession, following two

hundred years of unlawful possession, is a sufficiently disruptive remedy that it may satisfy the

prejudice element of the laches defense. However, the proof involved with the remedy of damages

will be radically different than that involved with a claim for an injunction, specific performance, or

equitable re-possession in real property. Indeed, there does not appear to be anything in the money

damages award in this case that would be disruptive.

        The majority concludes that the plaintiffs’ "possessory land claims" are barred in their entirety

by City of Sherrill and reasons that the plaintiffs, having been denied the right to possession, cannot

prove the elements of their claims for money damages. However, current possession is not an

element of a legal claim for ejectment. A legal claim for ejectment consists of the following elements:

"[p]laintiffs are out of possession; the defendants are in possession, allegedly wrongfully; and the

plaintiffs claim damages because of the allegedly wrongful possession." Oneida Indian Nation of N.Y. v.

County of Oneida, N.Y., 

, 683 (1974) ("Oneida I") (citing Taylor v. Anderson, 

(1914)). Making out this claim cannot depend on the plaintiffs’ ability to obtain the right to future

possession, whether legal or constructive, as such requirement would make the claim circular. Instead,

the only necessary element in this regard is that the plaintiffs are wrongfully out of possession, which

element the District Court here found. Cayuga 

. The inability to obtain the

coercive remedy of possession, as a result of the court’s exercise of discretion in the same case, should

not bar an ejectment claim for money damages.


                                                   31
          B.         Trespass

          While the majority does not appear to apply the laches defense to a claim for trespass

damages, it nevertheless dismisses the plaintiffs’ trespass claim on the basis that it is derivative of the

ejectment claim and requires proof of possession. The fact that "possession" is an element of a claim

for trespass does not require dismissal of the action, however. The trespass claim is not predicated

upon the plaintiffs’ possessory claim, nor is there any relationship between the two claims that

necessitates dismissal of the trespass claim. Indeed, the plaintiffs may be able to prove the right to

possession8 while being unable to obtain a coercive remedy that would restore them in the future to

physical possession.

          The majority’s contention that the plaintiffs cannot make out their claim for damages because

their claim for coercive relief fails treats the special defense of laches as if it were in the nature of a

statute of repose. However, nowhere in City of Sherrill is the "right" of possession addressed; the Court

writes always about the "remedy" of possession. See, e.g., City of 

. Courts have

discretion to apply laches to deny a party some or all remedies. 

at __. However, the defense

of laches does not apply to prevent a party from establishing an element of its cause of action. See

Felix v. Patrick, 

, 325 (1892) (discussed in City of 

-92). Perhaps if

laches were a doctrine akin to a statute of repose, such that, first, it applied to a legal claim and,

second, it vitiated the claim, the majority’s analysis that claims involving the right to possess are barred

by laches because laches bars the remedy of possession might be persuasive. See generally P. Stolz Family

P’ship v. Daum, 

, 102 (2d Cir. 2004) (discussing difference between statutes of repose,

which define and limit rights, and statutes of limitations, which "bear on available remedies").



          8
              There are issu es on appeal conce rning the rulings by the District Cou rt that the plaintiffs have a right to
possession becau se the land transfers w ere illegal.

                                                                32
Nothing in the case law concerning laches, however, supports such an analysis.

C.       United States as Plaintiff

         The United States is a plaintiff in this case. "The principle that the United States are not

. . . barred by any laches of their officers, however gross, in a suit brought by them as a sovereign

Government to enforce a public right, or to assert a public interest, is established past all controversy

or doubt." United States v. Beebe, 

, 344 (1888) (quoted in Alaska Dep’t of Envtl. Conservation

v. EPA., 

, 514 (2004) (Kennedy, J., dissenting)); see also United States v. Summerlin, 

, 416 (1940). In the instant case, the United States pursues a right created by a federal statute and

proceeds in its sovereign capacity and, as such, is not subject to a laches defense. 

; c.f., United States v. California, 

, 757-58 (1993). That the United States acts both on

its own behalf as well as that of the Cayugas does not affect this principle for "it is also settled that

state statutes of limitation neither bind nor have any application to the United States, when suing to

enforce a public right or to protect interests of its Indian wards." United States v. Minnesota, 

, 196 (1926); see also Nevada v. United States, 

, 141-42 (1983); Board of County Comm’rs of

Jackson County v. United States, 

, 350-51 (1939).

         The majority explains its application of the defense of laches to claims asserted by the United

States by suggesting that the doctrine that the United States is generally not subject to the defense of

laches "does not seem to be a per se" rule. See Maj. Op. at __. For this point, it relies upon Clearfield

Trust Co. v. United States. 

(1943). However, that case is distinguishable from the instant

one in two important respects, both of which exclude this case from the limited holding reached in

Clearfield Trust.

         First, the Court in Clearfield Trust limited its application of non-statutory time bars to those

claims brought by the United States that were not subject to any statutory time bar. 

("In


                                                     33
absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of

law according to their own standards."). The claims in this case are subject to a statutory time bar. See

28 U.S.C. § 2415; see also supra at 1-2. As Congress has already defined the applicable time bar,

Clearfield Trust supports the conclusion that this court should not reach the question of whether it

ought to fashion a time-bar, whether from state law or federal common law. See 

see also

Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 

, 95 (1981) ("the

federal lawmaking power is vested in the legislative, not the judicial, branch of government; therefore

federal common law is ‘subject to the paramount authority of Congress.’ New Jersey v. New York, 

, 348 (1931)"; Westnau Land Corp. v. United States Small Bus. Admin., 

, 117 (2d Cir.

1993) ("[T]he acknowledged federal interest in the ‘rights of the United States arising under

nationwide federal programs,’ United States v. Kimbell Foods, Inc., 

, 726 (1979), should be

determined by application of the statutory rule provided by Congress.").

        Second, the Clearfield Trust Court limited the application of laches to those claims deriving not

from the sovereign authority and rights of the United States but, instead, relating to the actions of the

United States with respect to business and commerce. Clearfield 

("The United

States as drawee of commercial paper stands in no different light than any other drawee."); see also

Franconia Assocs. v. United States, 

, 141 (2002) (citing Clearfield Trust for the proposition that

"[o]nce the United States waives its immunity and does business with its citizens, it does so much as a

party never cloaked with immunity."); Mobil Oil Exploration & Producing Southeast, Inc. v. United States,

, 607 (2000) ("When the United States enters into contract relations, its rights and duties

therein are governed generally by the law applicable to contracts between private individuals."

(internal quotation marks omitted)). In the instant case, the United States is not a commercial actor.

Here, it acts both "to enforce a public right [and] to protect interests of its Indian wards." United States


                                                     34
v. 

. It is clear, then, that the United States’s claims in this case, both on its

own behalf and as trustee to the Tribe, are not barred by laches.

         After relying on Clearfield Trust to open the door for application of laches to claims by the

United States, the majority then finds that the defense is appropriate in the instant case. In doing so, it

relies on a Seventh Circuit case for the proposition that three Supreme Court cases support the

application of laches in cases such as this one. United States v. Admin. Enters., Inc., 

, 673 (7th

Cir. 1995) (citing Occidental Life Ins. Co. v. EEOC, 

, 373 (1977); Heckler v. Community Health

Services of Crawford County, Inc., 

, 60-61 (1984); Irwin v. Dep’t of Veterans Affairs, 

,

95-96 (1990)).

         However, neither Administrative Enterprises, nor the cases cited therein, support the application

of laches to the United States in the instant case. Of the three cases cited by Administrative Enterprises,

only one specifically addresses the applicability of a delay-based defense like laches in a suit brought by

the United States. 9 Occidental 

. The Occidental Life Insurance Court declined to allow

delay to bar a claim by the United States. 

extent that it "refuse[d] to shut the door

completely to the invocation of laches or estoppel," Administrative Enterprises, 

, it did

so, in dicta, only where a "private plaintiff’s unexcused conduct of a particular case" made limitations

on relief, specifically backpay, appropriate. Occidental 

. Occidental Life, thus,

differentiates between claims and remedies, and unexcused delay by private plaintiffs and the United

States. 

not support application of laches here, where the majority applies the defense to




         9
             Heckler concerns estoppel, not laches, but does confirm as “well settled” precedent that “the Government
may not be estop ped on the sam e terms as an y other litigant.” 

. Irwin addresses equitable tolling and
concludes that the statute of limitations on a private party’s claim against the United Statutes may be equitably tolled
where the statutory waiver of sovereign imm unity allow ing for the priva te righ t action also makes the ru le of equitable
tolling applicable to the United 

. Notably, the Court commented that “Congress, of course,
may provide otherwise if it wishes to do so.” 

                                                              35
bar the claim itself, rather than a specific remedy for the claim.10

         These cases cannot support the proposition that this Court has the authority to craft a federal

common law defense of laches against an Indian land claim sought by the United States. Indeed,

Administrative Enterprises’ "three main possibilities for when laches might apply against the United

States," Maj. Op. at __, are not present in this case. With regard to Administrative Enterprises’ first

"possibility," egregious delay, while two hundred years is surely a significant length of time, the

majority fails to consider the nature of that delay and to what extent it may be excused. With regard

to Administrative Enterprises’ second "possibility," the absence of an applicable statute of limitations,

here Congress did enact a statute of limitations applicable to the plaintiffs’ claims for damages. 28

U.S.C. §2415(a).11 With regard to Administrative Enterprises’ third "possibility," situations where the

United States pursues a "private" interest, the Supreme Court has found that, insofar as it acts on

behalf of Indian tribes, the United States acts to protect a public interest, entirely dissimilar from the

private interest served where the United States pursues an action based on its purely commercial

endeavors. See United States v. Minnesota, 

, 196 (1926) (describing United States’ role in

serving public interest by protecting "interests of its Indian wards."). Indeed, it is in its role as a

sovereign that the United States participate in this case. 

(United States’ interest in suit in

which it represents Indians’ interests as trustee is based in its own sovereignty.). Thus, even if

Administrative Enterprises were persuasive precedent, this case presents none of its suggested possible


         10
              Another case, NLR B v. P*I*E Nationwide, Inc., is relied on by the m ajority for the proposition that “laches is
generally and we think correctly assumed to be applicable to suits by government agencies . . . .” Supra at [Majority at
21/2-5] (quoting 

, 89 4 (7th Cir. 1990)). That case, however, limits the court’s equitable discretion to areas
where neither Congress nor a federal agency has made a “value choice” contrary to the exercise of equitable discretion of
the court. P*I*E N ationwide, 

(“[W ]e do not mean to su ggest that the cou rt is entitled to substitute its
conception . . . for that of Co ngre ss . . .”). Congre ss has spoken on the issue of tim e bars to Indian land claim s. While
distinguish ing between rem edies m ay be appropriate, barring those claim s entirely ignores the controlling statute.

         11
             That § 2415(a) applies only to actions for money damages supports the conclusion that laches cannot be
applied to bar a claim for mon ey dam ages, but may be applied to bar a claim for equ itable relief.

                                                              36
situations justifying use of laches against the United States..

III.      The Import of City o f Sh e rrill

          The majority sees "no reason why the equitable principles identified by the Supreme Court in

City of Sherrill should not apply to this case, whether or not it could be technically classified as an

action at law." Maj. Op. at __. However, the clear language of City of Sherrill confines its holding to

the use of laches to bar certain relief, not to bar a claim or all remedies:

          "The question whether equitable consideration should limit the relief available to the
          present day Oneida Indians . . . ." City of 

(quoting Oneida 

, n. 27) (emphasis added).

          "In contrast to Oneida I and II, which involved demands for monetary compensation,
          OIN sought equitable relief prohibiting, currently and in the future, the imposition of
          property taxes." 

(emphasis added).

          "When the Oneidas came before this Court 20 years ago in Oneida II, they sought
          money damages only. The court reserved for another day the question whether
          ‘equitable considerations’ should limit the relief available to the present-day Oneidas."
          

(internal citations omitted) (emphasis added).

          "The principle that the passage of time can preclude relief has deep roots in our law. . . .
          It is well-established that laches, a doctrine focused on one side’s inaction and the
          other’s legitimate reliance, may bar long-dormant claims for equitable relief." 

          (emphasis added).

          " . . . the Oneida’s long delay in seeking equitable relief . . . evokes the doctrine[] of
          laches . . ." 

The City of Sherrill opinion is not support for the application of the equitable defense of laches as a bar

to money damages in this case.12

          The City of Sherrill Court’s analysis, which underpins its holding, is framed by the nature of the

equitable remedy that the Oneida Indian Nation sought there. 

("OIN sought



          12
               It is also telling that Justice Stevens noted in dissent that the majority “relie[d] heavily on the fact that the
Tribe is seeking equitable relief in the form of an injunction.” 

(Stevens, J., dissenting) (emphasis in the original
and add ed).

                                                                 37
equitable relief"); 

(“OIN seeks declaratory and injunctive relief”); 

("This long

lapse of time, during which the Oneidas did not seek to revive their sovereign control through

equitable relief in court, and [evidence of prejudice] . . . preclude OIN from gaining the disruptive

remedy it now seeks."); 

("long delay in seeking equitable relief"); 

n.14 ("specific

relief"). This language makes clear that the City of Sherrill Court addresses laches in the context of the

specific equitable relief sought in that case. Further, it repeatedly notes the difference between a right

and a remedy. As the City of Sherrill Court notes, the question of right is "very different" from the

question of remedy. 

(quoting Dan B. Dobbs, Law of Remedies § 1.2 (1st ed.1973)). The City

of Sherrill Court also quotes with approval a Tenth Circuit case for the principle that "the distinction

between a claim or substantive right and a remedy is fundamental." 

(quoting Navajo Tribe of

Indians v. New Mexico, 

, 1467 (10th Cir. 1987). As if to emphasize this point, and its

importance to the opinion, the City of Sherrill Court also quotes, with approval, the district court in

Oneida Indian Nation of New York v. County of Oneida on this distinction between right and remedy.

"[There is a] ‘sharp distinction between the existence of a federal common law right to Indian

homelands,’ a right this Court recognized in Oneida II, ‘and how to vindicate that right.’" City of 

(quoting Oneida Indian Nation of N.Y. v. County of Oneida, 

, 90 (N.D.N.Y.

2000) (emphasis in original).

        Further, the Supreme Court in City of Sherrill addresses at length an Indian land claim case,

Felix v. Patrick, 

. While the Felix Court applied laches to bar

the equitable remedy of a constructive trust over land conveyed by the plaintiff’s Indian ancestor in

violation of a statutory restriction, the Court noted, in dicta, that a money damages award would be

appropriate. 

. While the law demanded a measure of money damages, the delay

and prejudice due to changed circumstances over thirty years supported the application of the doctrine


                                                     38
of laches to the equitable remedy of constructive trust. 

see City of 

-92.

          Finally, the City of Sherrill Court expressly noted that, "the question of damages for the Tribe’s

ancient dispossession is not at issue in this case, and we therefore do not disturb our holding in Oneida

. While this statement is not dispositive of whether laches would apply here to

bar a money damage award, the Court in City of Sherrill did reiterate its observation in Oneida II that

"application of a nonstatutory time limitation in an action for damages would be ‘novel.’" 

n.14. (quoting Oneida 

). In contrast, it noted that "no similar novelty exists when the

specific relief OIN now seeks would project redress for the Tribe into the present and future." 

In light of the clear language and the analysis in City of Sherrill, the conclusion that

City of Sherrill limits the application of the equitable defense of laches to the award of forward-looking,

disruptive equitable relief is compelling.13

          Further, even assuming laches could apply to the money damages award in this case, there is

nothing in the record before us to support a finding of the disruptive nature of the monetary award.

See Maj. Op. at __. The City of Sherrill decision certainly supports affirming the District Court’s denial

of repossession as an equitable remedy, based on the District Court’s findings that the equitable

considerations involved in the case did not permit it. See Cayuga X, 

, at

*74-*99.14 However, there is no basis to support such a finding on the prejudice element with regard

          13
              The contention that a damages award for either past fair rental value or presen t fair m arket value w ould
"project redress into the present and future," Maj. Op. at __, in order to bring that award within the scope of the City of
Sherrill holding vitiates any reasonable meaning the Supreme Court could have intended that phrase to have.

          14
              The District Court did not conclude, as the majority suggests, that the "doctrine of laches bars the
possessory land claim presented by the Cayugas here." Maj. Op. at __. Indeed, the District Court concluded, on then-
existing pre ced ent, that laches d id no t bar th e plaintiff’s claims, Cayuga 

, but it later concluded that
equ itable considerations did prevent the award of the equ itable rem edy of p ossession. Cayuga X, 1999 U .S. Dist. LE XIS
10579, at *98. Properly distinguishing between claims and remedies, the District Court concluded that, “in the context
of determining whether ejectment is an appropriate remedy, the delay factor tips decidedly in favor of the defendants.”

                                                                39
to the award of money damages as a remedy in this case.

IV.       Conclusion

          While City of Sherrill may have "dramatically altered the legal landscape" of Indian land claims,

Maj. Op. at __, it does not reach as far as the majority reads it. City of Sherrill holds that laches can bar

a tribe from obtaining the disruptive remedy of re-assertion of tribal sovereignty. Furthermore, the

case supports the proposition that the nature of forward-looking, disruptive remedies generally will

serve as equitable considerations that can bar such equitable remedies as re-possession, even against

the United States. An award of money damages is not an equitable remedy, nor is it forward-looking

or disruptive in the way dispossession inherently is. Nothing in City of Sherrill suggests a total bar on

the ability of Indian tribes to obtain damages for past wrongs where Congress has explicitly provided

for it.

          City of Sherrill serves as strong support to affirm the District Court’s refusal to award

possession to the plaintiffs, and I join in the judgment to that extent. However, I respectfully dissent

from that part of the majority opinion which dismisses the Tribe’s claim for money damages. While

there remain issues as to the nature or amount of the money damages awarded, I cannot join the

majority in reading City of Sherrill to bar all remedies.

          While I do not join entirely in the majority’s resolution of this case, I wholeheartedly concur in

its comments concerning Judge McCurn’s tireless and thoughtful attention to this complex and

challenging case for over two decades.




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