Equity, Indian land claims, and the length of the Chancellor's foot
Equity is a roguish thing. For Law we have a measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ’T is all one as if they should make the standard for the measure we call a “foot” a Chancellor’s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. ’T is the same thing in the Chancellor’s conscience.
John Selden (1584–1654)
Kathryn Fort, the Associate Director for the Indigenous Law and Policy Center and Adjunct Professor at Michigan State University College of Law, has posted a draft of her forthcoming article for the Wyoming Law Review entitled "Disruption and Impossibility: New Laches and the Unfortunate Resolution of the Iroquois Land Claims in Federal Court", which chronicles the creation of a new equity defense standard for dealing with Indian land claims.
The "traditional" defense of "[l]aches 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." Oneida Indian Nation v. County of Oneida, 617 F. 3d 114, 127 Court of Appeals, 2nd Circuit (2010).
In other words, if you delay in asserting your rights for too long, and the other party is prejudiced by your delay, the prejudiced party may defend your claim on the equitable grounds of "laches".
But, as acknowledged by the Second Circuit Court of Appeals, and pointed out by Professor Fort, "[i]t is true that the district court in [the Oneida] case did not make findings that the Oneidas unreasonably delayed the initiation of this action or that the defendants were prejudiced by this delay—both required elements of a traditional laches defense. . . . This omission, however, is not ultimately important, as the equitable defense recognized in [City of Sherrill v. Oneida Indian Nation of NY, 544 US 197 - Supreme Court 2005] and applied in [Cayuga Indian Nation of NY v. Pataki, 413 F. 3d 266 - Court of Appeals, 2nd Circuit 2005] does not focus on the elements of traditional laches but rather more generally on the length of time at issue between an historical injustice and the present day, on the disruptive nature of claims long delayed, and on the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to the plaintiffs' injury." Oneida at 127, emphasis added; see also Fort (pdf) at 2.
After 37 years of litigation, the property rights claims of the Oneida Indian Nation of New York, the Oneida Tribe of Indians of Wisconsin, and the Oneida of the Thames were simply ushered out of court based upon the court's finding of a new equitable defense that applied only to them.
This "new" equitable defense of laches, which requires neither lack of diligence by the party against whom the defense is asserted, nor prejudice to the party asserting the defense, suggests that equity is indeed measured by the length of the Chancellor's foot.
Thank you, Professor Fort, for this important article (pdf).
