Steven Newcomb: Examining the new state of federal Indian law

"In a column published in December 2011, I criticized Charles Trimble and “Sam” Deloria, Jr., for what I considered to be personalized remarks directed at a Mohawk law professor, Carrie E. Garrow. She had made a comment about first year law students believing “the doors of justice are closed to Indian nations.” I did not care for Mr. Deloria likening Ms. Garrow to a complaining teenager, and I expressed my view in that column.

I called attention to a “new laches” doctrine used by the Second Circuit Court of Appeals to reject an appeal by the Oneida Indian Nation, regarding a land claim and monetary compensation. I quoted Professor Katheryn E. Fort’s explanation that, in the court’s view, the “new laches is ‘properly applied to bar any ancient land claims that are disruptive of significant and justified [non-Indian] societal expectations that have arisen as a result of a lapse of time’.”

According to Ms. Fort, this new laches doctrine has been devised to prevent Indian nations from being able to successfully bring any further land claims cases forward, and, as she explained, it “is potentially applicable to all ancient [Indian] land claims that are disruptive of justified [non-Indian] societal interests that have developed over a long period of time.” The U.S. Supreme Court later refused to review the Second Circuit Court of Appeals’ use of the “new laches” doctrine."

Get the Story:
Steven Newcomb: The New Laches in U.S. Law: My Response to Phillip ‘Sam’ Deloria (Indian Country Today 7/29)

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