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The New Laches: Creating Title Where None Existed

55 Pages Posted: 9 Aug 2008 Last revised: 21 Jan 2015

Kathryn E Fort

Michigan State University - College of Law

Date Written: August 8, 2008

Abstract

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.

Keywords: federal Indian law, laches, land claims, sovereign immunity

JEL Classification: K11, K19

Suggested Citation

Fort, Kathryn E, The New Laches: Creating Title Where None Existed (August 8, 2008). MSU Legal Studies Research Paper No. 06-15; 16 Geo. Mason L. Rev. 357 (Winter, 2009). Available at SSRN: https://ssrn.com/abstract=1213124 or http://dx.doi.org/10.2139/ssrn.1213124

Kathryn E Fort (Contact Author)

Michigan State University - College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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