Friday, January 29, 2010


NYLJ 5-22-07


3. In real estate, there is boilerplate in all deeds that says, “the holder may rely on the continued use and enjoyment of their property.” There are times, as well, that prove the rule; it is not just words on a page to fill in the space between the “whereas”-es and the metes-&-bounds--it is what makes your Estate real. This is why title companies proliferate like dandelions after a spring rain; somebody’s got to guarantee that your premises are yours and yours alone. That’s why no bank will give a mortgage without a survey. This is as basic as an 8-bar blues—and just as infinitely complex and resonant. And it’s why you pay your attorney so much dough for a few hours of phone calls and a quick scan of Schedule A & B.

Under the Doctrine of Laches, there is no “better late than never”, there is only “too late”. Yet, on occasion, Justice knows that some things require even Black Letter Law to bow to a higher cause.

The Oneidas were a mighty nation of the upper Hudson Valley of New York. If you start with the Treaty of Canandaigua in 1794, it was a tract of land that extended over 6 million acres. That wouldn’t be long after George Washington retired from public life and the veterans of the Revolutionary War were still mending fences broken by the Redcoats’ march. Who can say what is fair when a sovereign state decides, a year later, to buy off the tribe’s prize 100,000 acres at 50 cents per? How could the fair-market price sale’s be seven times that over the next two years to white Anglo-Europeans? But once your tribal council had begun down the slippery slope of selling off their homelands, who could expect to contain such monstrous swindles? Small wonder that whole lodges and clans would choose to migrate west, to Wisconsin, and north to Canada? What compensation could ever match such a loss of heritage?

This question has arisen as the remaining members of that tribe have sought redress of grievances against the US Government. What the court has to weigh are the solutions in the real world. Bring out the scales and put a horrible injustice and theft by malfeasance and coercion on one side and people who actually have title to every square patch from subdivisions to horse farms and the cost of displacing them on the other and you have arguments of equal heft, and neither of which can be assessed as a solution. But that's why someone has to sit in the high chair and bring down the wooden hammer on this auction of tears.

Your appraisal experts on historical land use and valuation records will tell you that an absurd and impossible task is only made worse by a calculator and a checkbook. You may conclude, and rightly so, that the state took advantage of tribal members, but could be as correct to say past injustices suffered cannot be remedies by creating future and present ones. Repossession would be overly disruptive and subject to an equitable defense.

So, forget about that redress, about a perfect world remade by judicial activism. The Doctrine remains—culpable of abetting a misdeed, bent, perhaps—yet unbowed. So you go into that which will work within its limitations: style it as a contract claim that seeks to reform or revise a contract that is void for unconscionability.

Or give them a casino.

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