The New Laches: Creating Title Where None Existed
Kathryn E Fort
Indigenous Law & Policy Center, Michigan State University College of Law
August 8, 2008
MSU Legal Studies Research Paper No. 06-15
16 Geo. Mason L. Rev. 357 (Winter, 2009)
Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will call the "new laches." This new defense, so far used successfully in Indian land cases in New York state and unsuccessfully elsewhere, has been so broadly construed by the Second Circuit that, if this view is adopted nationwide, it could apply to any treaty-based claim brought by Indians or Indian tribes.
Number of Pages in PDF File: 55
Keywords: federal Indian law, laches, land claims, sovereign immunity
JEL Classification: K11, K19working papers series
Date posted: August 9, 2008 ; Last revised: March 30, 2009
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