Bulletin: NY000532

Date:
October 30, 2013
To:
All New York State Office Counsel, Managers and Agents
RE:
Onondaga Nation Land Claim

On October 15, 2013, the United States Supreme Court denied the Onondaga Nation’s petition for a writ of certiorari in the Onondaga Nation claim action (12-1279) entitled (Onondaga Nation, Plaintiff, v. The State of New York, George Pataki, David Patterson, Onondaga County, City of Syracuse, Honeywell International, Inc., Trigen Syracuse Energy Company, Clark Concrete Company, Inc., Valley Realty Development Company, Inc., and Hanson Aggregate North America, Defendants) (Civil Action No. 05-CV-314: US District Court, Northern District of NY; 9/22/2010); (No. 10-4273-CV, United States Court of Appeals Second Circuit, 10/19/2012).  The Supreme Court’s denial of certiorari in the Onondaga claim allows the District Court’s dismissal of the Onondaga claim action, affirmed by the Second Circuit, to stand as the law of the case and therefore, effective immediately, Stewart Title’s Indian Exception / Indian Covenant is no longer required in Stewart Title policies issued in the areas of New York State affected by the Onondaga Nation Land Claim.

The Onondaga Nation land claim involved a 2.5 million acres of land inhabited by about 875,000 people bounded on the north by the St. Lawrence River and eastern and southern shore of Lake Ontario and on the south by New York State’s border with Pennsylvania.  The claim area covered portions of Jefferson, Lewis, Oswego, Onondaga, Cayuga, Madison, Cortland, Tompkins, Chenango, Tioga and Broome Counties and included the cities of Syracuse, Binghamton, Cortland, Fulton, Watertown and Oswego.  (Map Attached).  The Onondaga Nation cited as the basis for its claim: Federal Common Law, the United States Constitution, the Indian Trade and Non-Intercourse Acts of 1790, 1793, 1796, 1799, 1802 and 1834, (25 USC Section 177), the Treaty of Fort Stanwix of 1784 (7 STAT. 15) and the Treaty of Canandaigua of 1794 (7 STAT. 44) in connection with the State of New York purchase the lands in question between 1788 and 1822. 

The Onondaga Nation land claim was commenced March 11, 2005 seeking a declaratory judgment that certain New York State treaties and land purchases in 1788, 1790, 1793, 1795, 1817 and 1822 were null and void and that the title to the land conveyed to New York State by those treaties remained the property of the Onondaga Nation.  (United States District Court, Northern District of New York – 5:05-CV-0314).  On September 22, 2010 United States District Court Judge Lawrence E. Kahn issued a Memorandum – Decision and Order granting the defendants’ motions to dismiss the Onondaga Nation’s land claim action with prejudice.  In its dismissal of the Onondaga claim, the District Court extensively cited County of Oneida v. Oneida Indian Nation (470 US 226 (1985); Cayuga Indian Nation v. Pataki (413 F.3d, 266); The Oneida Indian Nation v. The County of Oneida, (617 F.3d 114) (2010) and City of Sherrill v. Oneida Indian Nation, (544 US 197) (2005).   District Court Judge Hahn reasoned in his decision that:  “The Court takes judicial notice that the contested land has been extensively populated by non-indians, such that the land is predominantly non-indian today, and has experienced significant material development by private persons and enterprises as well as by public entities. . . approximately 183 years separate the Onondaga’s filing of this action from the most recent occurrence giving rise to their claims [1822]. . .  Sherrill, Cayuga and Oneida foreclose any possibility that the Onondaga Nation’s action may prevail; the Court is bound by these precedents to find the Nation’s claims equitably barred and subject to dismissal. . . Plainly the Nation’s claims represent the type of inherently disruptive action which Cayuga instructs is barred under Sherrill’s formulation of a latches defense. . .   the claims themselves expressly seek to undermine the validity of the original transfer of the subject lands and dramatically upset the settled expectations of current land owners. . .   The Nation’s complaint asserts claims which are equitably barred on their face. . . These claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to the Plaintiff’s injury. . .  As such the Onondaga’s claims are equitably barred under Sherrill and Cayuga.”

On October 19, 2012 the United States Court of Appeals for the Second Circuit affirmed the District Court’s decision on the basis of 3 specific equitable grounds: “(1) the length of time at issue between [the] historical injustice and the present day; (2) the disruptive nature of claims long delayed; and (3) the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to the Plaintiff’s injury. . . All three factors support dismissal, . . .  This appeal is decided on the basis of the equitable bar on recovery of ancestral land. Finding no merit in the Onondaga’s remaining arguments, we hereby AFFIRM the judgment of the district court. . .”  

If you have any questions please contact Barry Balonek at barry.balonek@stewart.com or call 212-922-0050 and speak with any Agency Legal Services counsel.

 

THIS BULLETIN IS FURNISHED TO INFORM YOU OF CURRENT DEVELOPMENTS. AS A REMINDER, YOU ARE CHARGED WITH KNOWLEDGE OF THE CONTENT ON VIRTUAL UNDERWRITER  AS IT EXISTS FROM TIME TO TIME AS IT APPLIES TO YOU, AS WELL AS ANY OTHER INSTRUCTIONS. OUR UNDERWRITING AGREEMENTS DO NOT AUTHORIZE OUR ISSUING AGENTS TO ENGAGE IN SETTLEMENTS OR CLOSINGS ON BEHALF OF STEWART TITLE GUARANTY COMPANY. THIS BULLETIN IS NOT INTENDED TO DIRECT YOUR ESCROW OR SETTLEMENT PRACTICES OR TO CHANGE PROVISIONS OF APPLICABLE UNDERWRITING AGREEMENTS. CONFIDENTIAL, PROPRIETARY, OR NONPUBLIC PERSONAL INFORMATION SHOULD NEVER BE SHARED OR DISSEMINATED EXCEPT AS ALLOWED BY LAW. IF APPLICABLE STATE LAW OR REGULATION IMPOSES ADDITIONAL REQUIREMENTS, YOU SHOULD CONTINUE TO COMPLY WITH THOSE REQUIREMENTS.

References

Bulletins Replaced:
NY000246 Onondaga Nation Land Claim
Related Bulletins:
None
Underwriting Manual:
None
Exceptions Manual:
None
Forms:
None