Full opinion text
MEMORANDUM-DECISION AND ORDER KAHN, District Judge. BACKGROUND I. Factual Background This action is brought by three Indian nations, the Oneida Indian Nation of New York, the Oneida Indian Nation of Wisconsin and the Oneida of the Thames (collectively, the “Oneidas” or “Plaintiffs”), who claim to be descendants of the original Oneida Indian Nation that inhabited land in what is now central New York State “from time immemorial to shortly after the Revolution.” County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 230, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985). The Oneidas bring this action in order to regain possession of approximately 250,000 acres of land in New York State that they claim was unlawfully taken from the Oneida Indian Nation by New York State. The Oneidas’ troubles with New York State, for purposes of this action, began in 1788 with the Treaty of Ft. Schuyler, in which the State purchased the majority of the Oneidas’ aboriginal land and left the Oneidas with a reservation of approximately 300,000 acres in central New York State. In 1794, in the Treaty of Canan-daigua, the United States recognized that the Oneida Indian Nation had been granted this reservation of land in New York State. In this action, the Oneidas allege that following the Treaties of Ft. Schuyler and Canandaigua, New York State proceeded to illegally purchase for itself the Oneida Indian Nation’s reserved land. Specifically, the Oneidas challenge the validity of 30 land transactions entered into by the Oneida Indian Nation and New York State between 1795 and 1846. In these transactions, the original Oneida Indian Nation sold portions of the land reserved to it in the Treaties of Ft. Schuyler and Canandaigua to New York State. The Oneidas’ current claim is based on their argument that these transactions are barred by the 1793 Nonintercourse Act, 25 U.S.C. § 177, that prohibits the conveyance of Indian land without the express approval of the federal government, II. The “Test Case” In 1970, the Oneidas filed suit in the Northern District of New York against Madison an Oneida Counties (the “Counties”) challenging the validity of a 1795 land transaction in which the Oneida Indian Nation sold a large part of its original land reservation to New York State. In this action, titled Oneida Indian Nation of New York v. County of Oneida (the “test case”), the Oneidas sought the fair rental value for a two-year period of portions of the disputed land now occupied by the Counties. The test case was initially dismissed by the district court for lack of federal jurisdiction, and this decision was affirmed by the Second Circuit. See Oneida Indian Nation of New York v. County of Oneida, 464 F.2d 916 (2d Cir.1972). However, the Supreme Court reversed, finding that the Oneidas’ claim asserted a federal controversy because Indian posses-sory rights to tribal lands are governed by federal law. See Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661, 667, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (“Oneida I ”). The district court judge conducted a bench trial in the test case and found that the 1795 land transfer did violate the Non-intercourse Act. See Oneida Indian Nation of New York v. County of Oneida, 434 F.Supp. 527 (N.D.N.Y.1977) (“Oneida Test Case ”). This ruling was ^affirmed by the Second Circuit and the Supreme Court. See Oneida Indian Nation of New York v. County of Oneida, 719 F.2d 525 (2d Cir.1983) (“Oneida Test Case — Circuit ”); County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (“Oneida II”). The test case involved facts and legal theories quite similar to those present in this action. In fact, many of the legal theories and defenses set forth by the parties in this action were discussed extensively by the courts issuing decisions in the test case. The fundamental difference between the two actions lies in their scope. While the test case dealt with only one transaction and a smaller area of land, this action concerns a series of transactions over several years and a much larger area of land. In addition, while the plaintiffs in the test case are identical to Plaintiffs in this action, New York State was not a defendant in the test case, and the United States and the New York Brothertown Indian Nation did not intervene in the test case. Following Oneida II, the test case was remanded to the district court for further consideration of the Counties’ claimed offset against damages. The test case is currently pending in the Northern District of New York before Judge McCurn. III. Procedural History This action was filed by Plaintiffs in 1974 against the Counties and essentially lay dormant for many years while the Plaintiffs actively pursued the test case and while the parties engaged in extensive settlement discussions. In 1998, the United States was permitted to intervene as a plaintiff. In September 2000, Judge McCurn permitted Plaintiffs and the United States to amend their Complaints to add New York State as a defendant and the Oneida of the Thames as a plaintiff. In that same decision, Judge McCurn denied Plaintiffs’ motion to add private landowners as defendants. In May 2001, this Court permitted the Brothertown Indian Nation to intervene in this action. The Brothertown claim that the Oneidas granted them a portion of the land at issue in this action in a 1774 treaty between the two nations. They further claim that their right to this land was recognized in the 1794 Treaty of Canandaigua. The Broth-ertown have intervened in this action in order to protect their rights to this parcel of land. IV. Motions Before The Court In November 2001, the parties presented oral argument on several motions to the Court. This decision addresses eight of those motions. In this decision the Court addresses (1) Defendants’ motion to dismiss for nonjoinder of indispensable parties, (2) Plaintiffs’ motion to strike Defendants’ defenses, (3) the United States’ motion to strike Defendants’ defenses, (4) Brothertown’s motion to strike Defendants’ defenses, (5) Plaintiffs’ motions to dismiss Defendants’ counterclaims, and (6) the United States’ motions to dismiss Defendants’ counterclaims. DEFENDANTS’ MOTION TO DISMISS I. Standard Federal Rule of Civil Procedure 19(a) first requires the Court to determine whether an absent party is necessary to the action. An absent party is necessary and shall be joined in the action if: (1) in the person’s absence complete relief cannot be accorded among those already parties; or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the claimed interest. Fed. R. Civ. Proc. 19(a). Defendants contend that the New York Brothertown Indian Nation, the Brother-town Indian Nation of Wisconsin, the Marble Hill Oneida Indians, and the Iroquois Confederacy are all necessary parties to this action. Defendants urge the Court to either compel these parties to join in the action or dismiss the action under Rule 19 for failure to join indispensable parties. The facts presented to the Court do not support a finding that any of the absent parties are necessary parties under Rule 19(a)(1). The absence of these parties will not result in a denial of complete relief to the parties currently present in this action. See Arkwright-Boston Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d 205, 209 (2d Cir.1985) (stating that Rule 19(a)(1) does not contemplate relief that might be awarded to the absent party, but only whether the parties already present can be awarded full relief). There is no reason why the current parties cannot be awarded complete relief without the addition of the absent parties. This leaves the Court to examine Defendants’ claims under Rule 19(a)(2) and to determine whether the absent parties in fact claim an interest relating to the subject of this action. If the absent parties do in fact claim an interest in this action, the Court must determine whether deciding this action in their absence would impair their ability to protect that interest or leave Defendants open to the possibility of multiple suits and inconsistent judgments. The Court will analyze Defendants’ Rule 19(a)(2) claims separately for each absent party. II. New York Brothertown Indian Nation On May 21, 2001, the Court granted the New York Brothertown Indian Nation’s motion to intervene in this action. Because the New York Brothertown Indian Nation is a party to this action, Defendants’ motion as to it is moot. III. Brothertown Indian Nation of Wisconsin The Brothertown Indian Nation of Wisconsin has expressly disavowed any interest in the land involved in this action. The Wisconsin Brothertown have submitted an affidavit stating that their land claim, under the Treaty of Fort Schuyler, is outside of and to the east of the land at issue in this action. Because the Wisconsin Brothertown have specifically disavowed any interest in the land at issue in this action, they are not a necessary party for Rule 19 purposes. See Oneida Indian Nation of New York v. Madison County, 145 F.Supp.2d 268, 270 (N.D.N.Y.2001) (denying defendants’ motion to dismiss for Rule 19 nonjoinder of an indispensable party and finding that the absent party itself is the “best judge of whether it [has] an interest in the subject” of the action); ConnTech Dev. Co. v. University of Conn. Educ. Properties, Inc., 102 F.3d 677, 683 (2d Cir.1996) (“It is the absent party that must claim an interest for Rule 19(a)(2) purposes.”) (citations and internal quotations omitted). IV. Marble Hill Oneida Indians On November 7, 2001, the Marble Hill Oneidas moved to intervene in this action. Through their request for intervention, the Marble Hill Oneidas have indicated that they claim an interest in the land at issue in this action. Therefore, the Court must determine whether this purported interest would be impaired if this suit were to continue in their absence or if it would leave Defendants open to multiple or inconsistent obligations. The Court finds that it would not. Any interest that the Marble Hill Oneidas might have in this action would not be impaired if the suit continued in their absence. Furthermore, leaving the Marble Hill Oneidas out of this action would not leave Defendants open to multiple or inconsistent obligations. The Marble Hill Oneidas are official members of the Oneida Indian Nation of New York, a Plaintiff in this action. Any interest they might have in this action is identical to that of the New York Oneidas and is represented by the New York Oneidas. See Canadian St. Regis Band v. New York, 573 F.Supp. 1530, 1533 (N.D.N.Y.1983) (finding that “whatever title the Indians have is in the tribe, and not in the individuals”) (citations omitted). It was for this very reason that the Marble Hill Oneidas were denied intervention in the test case by Judge Port. See Oneida Indian Nation of New York v. County of Oneida, 70-CV-35, June 17, 1979 Order at 4 (finding that the Oneida Plaintiffs adequately represented the Marble Hill Oneidas’ individual interest in the action), aff'd 620 F.2d 285 (2d Cir.1980). The interests of the Marble Hill Oneidas are fully represented by the tribe of which they are a member, the New York Oneidas. The presence of the Marble Hill Oneidas in this action is therefore not necessary. V. Iroquois Confederacy Defendants contend that the Confederacy has asserted a claim relating to the subject matter of this action. In support of this contention, Defendants cite a statement by the Confederacy asserting that it “is the only legitimate body authorized to conduct land transactions” on behalf of the Six Nations that make up the Confederacy. Roberts Aff., Ex. 14. Defendants also quote the Confederacy as stating that the territories of its constituent nations “became Confederacy land” and “must be dealt with legally by the Council of Chiefs of the Confederacy.” Roberts Aff., Ex. 16. Plaintiffs argue that the Confederacy has specifically disavowed any interest in the current action and that the statements cited by Defendants are antiquated and irrelevant to this action. The Court finds that the Confederacy has not in fact claimed an interest in the subject matter of this action or in the action itself. See Zwack v. Kraus Bros. & Co., 93 F.Supp. 963, 966 (S.D.N.Y.1950) (finding that where the existence of an absent party’s interest is disputed, the Court must make an appraisal of the substantiality of such interests). The Defendants’ attempt to assert an interest in this action on behalf of the Confederacy is insufficient under Rule 19(a)(2). See Conn-Tech Dev. Co. v. University of Conn.Educ. Properties, Inc., 102 F.3d 677, 682 (2d Cir.1996) (stating that it is the absent party that must itself claim an interest under Rule 19(a)(2)). The Confederacy’s conduct with regard to Indian land claim actions stands in direct contradiction to its previous statements as cited by Defendants. The statements cited by Defendants on behalf of the Confederacy were, for the most part, made decades ago and have certainly not been acted upon by the Confederacy in the years since, at least not in the context that confronts the Court in this action. Several Indian land claim cases involving the constituent tribes of the Confederacy have proceeded in the federal courts without the Confederacy. See, e.g., Cayuga Indian Nation v. Cuomo, Nos. 80-CV-930 & 80-CV-960 (N.D.N.Y.); Seneca Nation v. New York, 85-CV-411C & 93-CV-0688 (W.D.N.Y.); Canadian v. St. Regis v. New York, 82-CV-783 (N.D.N.Y.). Neither the courts nor the Confederacy itself have ever suggested that the Confederacy’s presence was necessary in those actions. Furthermore, the Confederacy has not attempted to intervene in any of these actions in order to assert the purported interests that Defendants ascribe to it. Since the Confederacy has sought to intervene in cases where it has an interest, its failure to intervene in the many Indian land claim cases involving its constituent nations supports a finding that the Confederacy does not have an interest in those actions, nor in the action before this Court. See Oneida Indian Nation of Wis. v. State of New York, 732 F.2d 261, 265 n. 6 (2d Cir.1984) (recognizing that the Seneca Nation “has conducted recurrent and successful litigation in its own right in the federal courts, without [Confederacy] participation and with no deference shown to Gayanera-kowa [Confederacy law]”). The Confederacy has also submitted an affidavit in this action, specifically indicating that it has no objections to this case going forward in its absence. See Judge Aff., Ex.2. While this affidavit does not specifically state that the Confederacy has no interest in this action, it does contradict the Confederacy’s prior statements in other contexts implying that it is the sole arbiter of land claim disputes for its constituent tribes. The Court finds the Confederacy’s lack of objection to this action persuasive and consistent with the evidence discussed above indicating that the Confederacy claims no real,interest in this action. In summary, there is no indication, based on the evidence submitted to the Court, that the Confederacy has any real interest in the land at issue in this action. The statements attributed to the Confederacy by the Defendants about the Confederacy’s power of government over the Oneidas and its other constituent nations are belied by the Confederacy’s own actions and the actions of its constituent nations. The Confederacy’s failure to participate in similar Indian land claim actions and its lack of objection to this action are also telling. Because the Confederacy has no real interest in this action, it is not a necessary party under Rule 19. PLAINTIFFS’ MOTION TO STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES I. Standard Motions to strike affirmative defenses under Rule 12(f) of the Federal Rules of Civil Procedure are not generally favored. Despite a general disfavor for motions to strike, courts should grant these motions when the defenses presented are clearly insufficient. Motions to strike have been found to “serve a useful purpose by eliminating insufficient defenses and saving the time which would otherwise be spent in litigating issues that would not affect the outcome of the case.” Simon v. Manufacturers Hanover Trust Co., 849 F.Supp. 880, 882 (S.D.N.Y.1994) (internal citations and quotations omitted). They are to be granted only when “it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense.” Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir.1984), vacated on other grounds, 478 U.S. 1015, 106 S.Ct. 3324, 92 L.Ed.2d 731 (1986). In deciding a Rule 12(f) motion, a court “must accept the matters well-pleaded as true and should not consider matters outside the pleadings.” County Vanlines, Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 152 (S.D.N.Y.2002) (internal quotations omitted). Even when the facts are not in dispute, it is generally accepted by courts of this Circuit that it is not appropriate to decide substantial issues of law on a motion to strike. See Salcer, 744 F.2d at 939. This is particularly true where there has been little or no discovery, as in the present case. Additionally, in order to grant a motion to strike a defense, the inclusion of the defense must result in prejudice to the plaintiff. See S.E.C. v. Toomey, 866 F.Supp. 719, 722 (S.D.N.Y.1992). The requirement of prejudice to the plaintiff may be satisfied if the inclusion of the defense would result in increased time and expense of trial, including the possibility of extensive and burdensome discovery. See id. at 722. That element of prejudice is certainly present in this extremely complicated action that has already been pending for well over two decades. See Mohegan v. Connecticut, 528 F.Supp. 1359, 1362 (D.Conn.1982) (granting a motion to strike in an “extraordinarily complex” action and concluding that “[t]he legal issues presented by [the] defenses would greatly complicate the pre-trial process” and that “early resolution of defenses that could not possibly prevent recovery by the plaintiff will facilitate the orderly progress of this protracted litigation towards either trial or settlement”) (internal quotations omitted). In this action, Plaintiffs argue that Defendants have asserted several defenses that are insufficient both legally and factually. In all, Plaintiffs challenge the validity of 37 affirmative defenses raised by the State and 32 affirmative defenses raised by the Counties. II. Defenses A. Plaintiffs ’ Standing Defendants challenge the Plaintiffs’ standing to bring this action. To bring a claim under the Nonintercourse Act, a plaintiff must show that it is or represents an Indian tribe within the meaning of the Act. See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58 (1994). Defendants dispute Plaintiffs’ assertion that they are the successors in interest to the original Oneida Indian Nation or to the factions of the Oneida Nation that entered into the land transactions at issue in this action. Plaintiffs contend that their standing has been conclusively determined through government recognition of their tribal status and by the findings of the courts in the test ease. Because the test ease concerned the same plaintiffs and the same type of claim present in this action, Plaintiffs argue that there are no outstanding factual or legal questions as to then-standing to bring this action. Therefore, Plaintiffs argue that Defendants’ standing defense should be stricken as legally insufficient. 1. The Test Case All three Plaintiffs in this action were plaintiffs in the test case, in which Plaintiffs sued the Counties under the Nonin-tercourse Act, challenging a 1795 land transaction between the Oneida Nation and the State of New York. In the test case, Judge Port explored extensively the tribal status of all three Oneida Plaintiffs. See Oneida Indian Nation of New York v. County of Oneida, 70-CV-35, Transcript of Proceedings on Nov. 12-13,1975. After a full presentation of evidence from both sides, and after considering the tribal status factors outlined in Mashpee Tribe v. Town of Mashpee, 447 F.Supp. 940 (D.Mass.1978), affd', 592 F.2d 575 (1st Cir.1979), Judge Port found that all three tribal plaintiffs, including the Oneida of the Thames, were “direct descendants” of the original Oneida Nation. Oneida Test Case, 434 F.Supp. 527, 538 (N.D.N.Y.1977). Judge Port’s finding was directly acknowledged by the Second Circuit and the Supreme Court in their review of the case. See Oneida Test Case—Circuit, 719 F.2d 525, 539 (2d Cir.1983) (observing that “[t]he district court found that the three plaintiffs are the direct descendants of the Oneida Indian Nation”); Oneida II, 470 U.S. 226, 230, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) (identifying the Oneida plaintiffs as “direct descendants of members of the Oneida Indian Nation”). The acceptance by the courts in the test case of Plaintiffs’ standing to sue under the Nonintercourse Act has a significant effect on this action. The material components of Plaintiffs’ claims in both actions, the treaties upon which their claims are based, and the statute they alleged was violated are identical. Because the factual and legal issues arising in this action and the test case are nearly identical, the Court cannot see how Plaintiffs could be found to have standing in the test case but somehow not be found to have standing in this action. In fact, Defendants have raised no issues of fact with regard to Plaintiffs’ assertions that they are successor tribes to the Oneida Indian Nation or that they currently exist as tribes in their own right. They have instead concentrated their argument on asserting that the determination of Plaintiffs’ standing made by the courts in the test case is not applicable to this action. A challenge to Plaintiffs’ standing at this point is only possible if there exists some material difference between the two cases that would make this Court’s determination of standing different from that of Judge Port. The one difference between this action and the test case, for purposes of Plaintiffs’ standing, is the number of transactions alleged to be in violation of the Nonintercourse Act. In the test case the Oneida Plaintiffs challenged the validity of only one transaction. In this action they challenge the validity of twenty-six different transactions. Defendants contend that Plaintiffs’ standing in this action (unlike the test case) requires them to prove their connection to the original Oneida Indian Nation or to factions of the original Oneida Indian Nation at all twenty-six points in time when the disputed land transactions were consummated. The Court rejects this contention. The rights alleged by Plaintiffs in this action do not involve the rights of the individual groups or sects of Oneida Indians that Defendants allege completed the disputed land transactions with the State of New York. The rights alleged by Plaintiffs are rights protected by the Nonintercourse Act for the Oneida Indian Nation and its successors as a whole. Plaintiffs allege that these rights stem not from treaties signed with individual sects or factions of the original Oneida Indian Nation, but from the 1794 Treaty of Canandaigua, which preserved land for the whole of the Oneida Indian Nation. Indeed, the United States government, in later dealings with the Oneidas, treated the Oneidas as one nation. See Treaty of Buffalo Creek, Jan. 15, 1838, U.S.-New York Indians, art. 2, 7 Stat. 550. The claims asserted by Plaintiffs are matters of collective tribal ownership. It would defy logic to force the Plaintiffs in this action to trace their lineage back to individual members or factions of the original Oneida Nation at particular points in time when Plaintiffs’ claim concerns rights granted to the Oneida Indian Nation as a whole and is based on a statute granting protection to entire Indian nations. Because there is no material difference for purposes of standing between this case and the test case, the Court will give significant weight to the determination by Judge Port that Plaintiffs are direct descendants of the original Oneida Indian Nation. 2. Federal Recognition There is no dispute among the parties that both the New York Oneidas and the Wisconsin Oneidas are federally recognized tribes. The Bureau of Indian Affairs (“BIA”) began a formal program of tribal recognition in 1978. Through this program, the BIA makes a determination, based on the modern Indian tribe’s history and lineage, as to whether the modern tribe is indeed a successor in interest to an ancient Indian tribe. The New York and Wisconsin Oneidas are considered by the United States government to be successors in interest to the original Oneida Indian Nation. Courts have consistently found that recognition of a tribe by the United States government is to be given substantial weight in determining an Indian plaintiffs tribal status for Nonintercourse Act claims. See, e.g., Cayuga Indian Nation v. Cuomo, 667 F.Supp. 938, 942 (N.D.N.Y.1987) (finding that federal recognition of tribal status is to be accorded “great significance” in determining standing under the Nonintercourse Act); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582 (1st Cir.1979) (acknowledging that courts have generally been able to accept tribal status as a given on the basis of the doctrine that the courts will accord substantial weight to federal recognition of a tribe); see also Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 60 (2d Cir.1994) (“[T]he BIA is better qualified by virtue of its knowledge and experience to determine at the outset whether Golden Hill meets the criteria for tribal status. This is a question at the heart of the task assigned by Congress to the BIA and should be answered in the first instance by that agency.”). In Cayuga v. Cuomo, the court gave great deference to the government’s recognition of the tribal plaintiffs and found it unnecessary to consider the factors applied in Mashpee, 592 F.2d at 582, since the Cayuga plaintiffs, unlike the Mashpee plaintiffs, were federally recognized tribes. See Cayuga, 667 F.Supp. at 948. The Cayuga court concluded that based on the explicit federal recognition of the Plaintiff tribes as successors in interest to the original Cayuga Indian Nation, it had “little hesitation in holding that there is no genuine issue of material fact regarding [their] tribal status.” Id. The Court finds the reasoning of the court in Cayuga v. Cuomo to be applicable to this action. 3. The Mashpee Case Defendants contend that the Court should apply the factors outlined in Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.1979), and require Plaintiffs to prove their continuous tribal existence by showing that the Oneida Indian Nation existed as a tribe at the time of each land transaction at issue in this action. In support of this contention, Defendants have asked the Court to take judicial notice of several statements concerning the Oneida Indian Nation’s tribal existence, one by a court in 1877 and the others by assorted federal bureaus in the late nineteenth and early twentieth centuries. These statements include a citation to the 1892 census, which Defendants note contains no map of the Oneida reservation, a 1906 report from the Department of the Interior stating that the New York Oneida “can hardly be said to maintain a tribal existence,” and a quotation from a book about the Wisconsin Oneida in which is chronicled the Wisconsin Oneidas’ loss of land and governing power to white society. Defs. Br. at 21-22; Schraver Aff., Exs. 2-5, 8-9. Even if the Court were to take judicial notice of these statements, they would have no effect on Plaintiffs’ standing in this action. There is no need to require Plaintiffs to prove their tribal existence at the time of each relevant land transaction, as required in Mashpee, because unlike the Mashpee plaintiffs, two of the Oneida Plaintiffs have been federally recognized and the standing of all three Plaintiffs to bring a claim under the Nonintercourse Act has been accepted by previous courts. The Mashpee plaintiffs were a United States based tribe who were not recognized by the United States government. They had not previously brought a claim in which their standing and tribal status had been explicitly recognized. The Mashpee court was therefore forced to consider other evidence of tribal status to determine the plaintiffs’ standing. This is not analogous to the situation facing this Court. In a case like this one, where the Plaintiffs’ standing under the Noninter-course Act has been accepted in a previous action and in which two of the Plaintiff tribes are federally recognized, Plaintiffs have standing as a matter of law. The facts outlined in the pleadings and the law governing standing in Indian land claim actions do not support a defense challenging Plaintiffs’ standing in this action. In addition, the prejudice that would result to Plaintiffs by forcing them to respond to burdensome discovery requests on an issue which is not legitimately in dispute argues in favor of striking the defense. Defendants’ standing defenses are therefore stricken. B. Disestablishment, Diminishment and Ft. Schuyler These defenses are discussed below as part of the Court’s discussion of Plaintiffs’ and the United States’ motions to dismiss Defendants’ counterclaims. See discussion infra p. 130, Part II. In accordance with that discussion, Defendants’ disestablishment and diminishment defenses remain and the Ft. Schuyler defense is stricken. C. Ratification and U.S. Consent Defendants contend that ratification of the land transactions at issue in this action can come from a number of federal sources and that Plaintiffs are required under the Nonintercourse Act to prove that the United States never consented to the alienation of their land. Plaintiffs counter that ratification of the disputed land transactions must be by federal statute or treaty, and that Defendants’ failure to plead the existence of any such statute or treaty causes their ratification defenses to fail. While the law is clear that congressional intent to terminate title to Indian land must be plain and unambiguous, see Oneida II, 470 U.S. at 247, it is far from clear that ratification of Indian land transactions must necessarily be by treaty or statute. See, e.g., Seneca Nation of Indians v. State of New York, 26 F.Supp.2d 555, 571 (W.D.N.Y.1998) (finding that federal ratification of an Indian land transaction must be explicit but not necessarily by federal treaty or statute); Oneida Test Case—Circuit, 719 F.2d at 539 (same); Cayuga Indian Nation of New York v. Cuomo, 667 F.Supp. 938, 944-45 (N.D.N.Y.1987) (same). In Cayuga v. Cuomo, the court found that a complete factual record of the land transactions at issue was necessary prior to a determination of whether the land transactions had indeed been ratified by the federal government. Cayuga v. Cuomo, 667 F.Supp. at 944-45. In light of the uncertainty of the law in this area and the lack of facts before the Court supporting either party’s position, substantial issues of law and fact relating to this issue remain unresolved. It would therefore be inappropriate to strike the Defendants’ ratification defenses at this time. D. Adequacy of Consideration, Estop-pel, Estoppel by Sale, Bona Fide Purchaser and Payment Defendants contend that the equitable remedies of adequacy of consideration, es-toppel, estoppel by sale, bona fide purchaser, and payment are available to them under federal law. Plaintiffs contend that if Defendants are found to have violated the Nonintercourse Act, these defenses are not available because under the Noninter-course Act the land transactions at issue can only be validated by federal ratification. These defenses rely on the principle that conduct by Plaintiffs or Defendants can validate Indian land transactions even if those transactions were not approved by the United States as required by the Nonintercourse Act. By prohibiting land transactions with Indians that were not sanctioned by the United States, the Nonintercourse Act precludes inquiry into the fairness of the transactions. See Oneida Test Case, 434 F.Supp. at 541 (“By prohibiting all unauthorized dealings with Indians, [the Nonintercourse Act] cuts off any inquiry into the fairness of such dealings insofar as the validity of the resulting transfer is concerned.”). In other words, even if the land transactions are somehow shown to be fair in price, as these defenses would allow, they would still be unlawful under the Nonintercourse Act unless approved by the United States. See id. at 530 (“Although the present owners of the [land] may have acted in good faith when acquiring their property, such good faith will not render good a title otherwise not valid for failure to comply with the Nonin-tercourse Act.”). Thus, as a matter of law, the defenses of bona fide purchaser, adequacy of consideration, estoppel, estoppel by sale, and payment are unavailable to Defendants, at least for purposes of determining Defendants’ liability. See Cayuga Indian Nation v. Cuomo, 565 F.Supp. 1297, 1301-02 (N.D.N.Y.1983) (striking the defenses of estoppel and estoppel by sale in Indian land claim action arising under the Nonintercourse Act); Seneca Nation of Indians v. State of New York, 93-CV-688A, 1994 WL 688262, at *5 (W.D.N.Y. Oct. 28,1994) (same). However, as Defendants note, the defenses of adequacy of consideration, payment and bona fide purchaser may be relevant to a determination of damages. These defenses remain for the limited purpose of determining damages. E. Mitigation Defendants contend that delay in bringing a case to trial can be seen as failure to mitigate and can affect the value of the land in question. Plaintiffs argue that mitigation is simply laches by another name and that delay-based defenses are not permissible in suits brought by Indian tribes under the Nonintercourse Act. The defense of mitigation is not relevant to Defendants’ liability. Defendants cannot rely on Plaintiffs’ delay in bringing suit to escape liability in this action. See discussion infra p. 123, Part II.G. However, the defense of mitigation is relevant to issue of damages in this action. The defense will therefore remain for the limited purpose of determining damages. F. Collateral Estoppel Collateral estoppel, or issue preclusion, bars a party from relitigating an issue that was “actually litigated and necessary to the outcome” of a prior adjudication. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Defendants argue that determinations made by the Indian Claims Commission (“ICC”) and the Court of Claims, in actions brought before those courts by Plaintiffs, preclude Plaintiffs from re-litigating the same issues in this action. In Cayuga Indian Nation of New York v. Cuomo, 667 F.Supp. 938 (N.D.N.Y.1987), the court found that prior findings of the ICC regarding the United States’ knowledge of certain treaties between the plaintiff Indians and the State of New York did not bar the Cayuga court from determining on its own the issue of whether the United States ratified the treaties. Id. at 948. However, prior to deciding the issues on its own, the Cayuga court ordered the development of a full factual record regarding the circumstances of the conveyances and stated that the findings of the ICC might indeed have relevance to future issues in the action before it. But see Seneca Nation of Indians v. State of New York, 26 F.Supp.2d 555, 569-70 (W.D.N.Y.1998) (noting that the United States cannot be barred from re-litigating previously litigated issues in a case of nonmutual collateral estoppel and finding that where plaintiffs’ claims are identical to those of the United States, it makes no difference whether the plaintiffs are barred from re-litigating the issue). The situation before this Court is similar to that before the Cayuga court. It is not appropriate at this time to strike Defendants’ defense of collateral estoppel, since further development of the factual and legal record may reveal issues to which the prior determinations of the ICC and the Court of Claims may prove relevant. If such instances do arise, the defense of collateral estoppel will of course be limited to issues actually litigated and decided in those prior actions, and will apply only to issues that were necessary to the outcome of those actions. G. Laches and Adverse Possession Courts analyzing Indian land claim actions have consistently rejected the use of delay-based defenses. See Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070, 1084, 1097 (2d Cir.1982) (rejecting the validity of delay-based defenses, specifically laches, in Indian land claim action); Oneida Test Case—Circuit, 719 F.2d 525, 538 (2d Cir.1983) (recognizing that “we have recently rejected that [Indian land claim] actions are time barred”); Oneida Indian Nation of New York v. State of New York, 860 F.2d 1145, 1149 (2d Cir.1988) (recognizing its previous rejection of laches and other delay-based defenses in Indian land claim actions); Oneida II, 470 U.S. at 262 n. 10, 105 S.Ct. 1245 (Stevens, J., dissenting) (“The Court of Appeals’ rejection of delay-based defenses, 719 F.2d 525, 538 (2d Cir.1983), will remain the law of the Circuit until it is reversed by this Court, and will no doubt apply to the numerous Indian claims pending in the lower courts.”); Seneca Nation of Indians v. State of New York, 93-CV-688A, 1994 WL 688262, at *2 (W.D.N.Y. Oct.28, 1994) (“The Second Circuit has definitively ruled that delay-based defenses founded on both state law and federal law are inapplicable to claims under the Nonintercourse Act.”); Seneca v. New York 26 F.Supp.2d 555, 573 (W.D.N.Y.1998) (following the Supreme Court’s reasoning in Oneida II and rejecting the defense of laches). The law on this issue overwhelmingly supports striking Defendants’ laches and adverse possession defenses as legally insufficient. Defendants maintain that the Supreme Court’s reasoning in Oneida II leaves open the question of whether the defense of laches applies to claims by Indian tribes. However, even though the Supreme Court did not definitively decide the issue, the strong language it used in contemplating a laches defense has been recognized by lower courts as effectively barring the defense of laches in Indian land claims. The Supreme Court noted that the “statutory restraint on alienation of Indian tribal land adopted by the Nonintercourse Act of 1793 is still the law” and stated that this fact suggests that the application of laches is inconsistent with established federal policy. Oneida II, 470 U.S. at 245 n. 16, 105 S.Ct. 1245. The reasoning of the Supreme Court has been adopted by lower courts in determining whether laches is an available defense in Indian land claim actions. In Oneida Indian Nation of New York v. City of Sherrill, 145 F.Supp.2d 226, 259 (N.D.N.Y.2001), the court denied defendant’s motion to amend its answer to add a defense of laches. Laches, the court stated, “is not an available defense in actions brought by Indians ... to protect their rights to their land.” Id. (basing its determination in part on the “federal statutory protection against the alienation of Indian land without Congressional action”). Judge Port also found that the doctrines of laches and adverse possession could not validate the land transaction at issue in the test case. See Oneida Test Case, 434 F.Supp. at 542 (“Adverse possession and laches are no defense to a suit by the government to protect restricted land.”); see also Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070, 1083 (2d Cir.1982) (“Defenses [in Indian land claim cases] based upon state adverse possession laws and state statutes of limitations have been consistently rejected.”). In light of the extensive law rejecting the laches and adverse possession defenses in Indian land claims, the Court finds that Defendants’ defenses of laches and adverse possession are insufficient as a matter of law. H. Failure to Exhaust Remedies and Election of Remedies Defendants argue that Plaintiffs have failed to exhaust the remedies available to them. Defendants base this contention on the decision of Plaintiffs to withdraw claims similar to those in this action that they brought before the ICC. Plaintiffs withdrew their claims from the ICC after a favorable finding of liability but prior to a determination of damages. A failure to exhaust remedies defense is generally asserted in a case where a plaintiff has failed to pursue administrative or state remedies available to it. The doctrine of failure to exhaust remedies provides that a plaintiff is not entitled to judicial relief for an alleged injury until the prescribed administrative remedy has been exhausted. See McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). Exhaustion of remedies “is based on the need to allow agencies to develop the facts [and] to apply the law in which they are peculiarly expert.” Schlesinger v. Councilman, 420 U.S. 738, 756, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). Plaintiffs argue that their decision to pursue remedies before the ICC and the Court of Claims should not preclude them from pursuing this action. This argument is based in part on Plaintiffs’ contention that ICC proceedings do not bar remedies against anyone but the federal government. See Oneida Test Case, 434 F.Supp. at 531 n. 9 (finding that the establishment of the ICC evidences “no intent to supplant Indian claims against other parties, governmental or private”). However, the Second Circuit has found that even in cases where an administrative court was established without exclusive or mandatory jurisdiction over the claims before it, a plaintiff who pursued remedies both in that forum and in federal court could be subject to an exhaustion defense. See Miss America Org. v. Mattel, Inc., 945 F.2d 536, 541 (2d Cir.1991) (recognizing that a failure to exhaust defense has been applied by the Supreme Court where the federal courts had concurrent jurisdiction over the issue under collateral attack with an executive agency). Because there is an outstanding issue of law as to whether Defendants are entitled to an exhaustion defense, the Court will not strike it. Defendants also assert a defense of election of remedies, presumably also arising out of Plaintiffs’ decision to file claims against the United States with the ICC. An election of remedies defense is an equitable doctrine that protects a party from being forced to respond to charges in two different fora. See Flynn v. Goldman Sachs & Co., 91 Civ. 0035, 1993 WL 336957, at *2 (S.D.N.Y. Sept. 2, 1993). The Court does not see how this defense applies to Defendants. Defendants were not parties to the ICC action and are responding to Plaintiffs charges in federal court only. Therefore, the defense of election of remedies is stricken with leave to replead. I. Claim Splitting The Defendant Counties argue that by initiating the test case in 1970, and then initiating this action in 1974, Plaintiffs are guilty of claim splitting. Plaintiffs argue that a claim splitting defense does not apply where the parties have acquiesced to the claim splitting. There are unresolved issues of fact as to whether the Counties acquiesced to the splitting of Plaintiffs’ claims between this case and the test case. A determination of whether or not counties acquiesced in the Plaintiffs’ claim splitting requires a factual determination that is not appropriate for the Court to make on a motion to strike. The Counties’ defense of claim splitting therefore remains. J. Res Judicata Under the doctrine of res judicata “a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Res judicata applies to any claim or defense previously available, whether or not it was actually litigated or determined. See Tucker v. Arthur Andersen & Co., 646 F.2d 721, 727 (2d Cir.1981). The main concern underlying the doctrine of res judicata is to bring litigation to an end after the parties have had a fair opportunity to litigate their claims. See Seneca Nation of Indians v. State of New York, 26 F.Supp.2d 555, 566 (W.D.N.Y.1998). It is somewhat unclear to which prior actions Defendants claim res judicata applies. In Defendants’ brief, the defense of res judicata is connected to their defense of claim splitting, thus leading the Court to believe that Defendants assert a res judi-cata defense as to issues resolved in the' test case. There are unresolved issues of fact as to what claims may have been resolved in the test case and would therefore be barred by res judicata in this action. There is also a substantial outstanding issue of law as to whether the State is in privity to the defendants in the test case such that res judicata would apply. See Seneca v. New York, 26 F.Supp.2d 555, 567 (W.D.N.Y.1998) (outlining privity concerns). Defendants’ res ju-dicata defense therefore survives. K. Judicial Estoppel “The doctrine of judicial estop-pel prevents a party from asserting a factual position in a legal proceeding that is contrary to a position previously taken by him in a prior legal proceeding.” Bates v. Long Island R.R., 997 F.2d 1028, 1037 (2d Cir.1993). The elements are (1) the party against whom judicial estoppel is asserted must have argued an inconsistent position in a prior proceeding, and (2) the prior inconsistent position must have been adopted by the court in some manner. See id. at 1038. Defendants have not set forth any specific reasoning behind this defense, nor have Plaintiffs come forward with any reason why this defense is invalid other than to allege that it is conclusory. In the absence of any argument on the merits of this defense, the Court finds that it is factually and legally possible that Defendants will be able to use this defense in this action. It will therefore not be stricken. L. Accord and Satisfaction, Unclean Hands and Waiver All three of these defenses are based on a presumption that Plaintiffs’ behavior following a land transaction can validate the transaction even in the absence of federal approval. In Oneida I the Supreme Court interpreted the Noninter-course Act to require federal approval of Indian land transactions in order to validate them. See Oneida I, 414 U.S. at 678, 94 S.Ct. 772 (stating that the Oneida Plaintiffs’ land claims arise from “treaties guaranteeing their possessory rights until terminated by the United States”); see also Oneida II, 470 U.S. at 244, 105 S.Ct. 1245. In light of the Supreme Court’s interpretation of the Nonintercourse Act, the Court finds that “the application of state law-based defenses of accord and satisfaction and unclean hands would contravene established policy pertaining to Indian’s ability to enforce their property rights.” Seneca v. New York, 93-CV-688A, 1994 WL 688262, at *1 (W.D.N.Y. Oct.28, 1994). Allowing these types of defenses in an Indian land claim action would contradict federal policy regarding the requirements under the Nonintercourse Act for the validation of Indian land transactions. See Oneida I, 414 U.S. at 670, 94 S.Ct. 772 (finding that Indian title to land can be extinguished only with federal consent); 470 U.S. at 247-48, 105 S.Ct. 1245 (finding that federal intent to extinguish tribal pos-sessory rights to land must be plain and unambiguous). M. Abandonment and Release and Relinquishment The Defendant Counties claim specifically that the Wisconsin Oneida and the Thames Oneida abandoned their land and that all three Plaintiffs are subject to a defense of release and relinquishment. The State alleges that all three Plaintiffs are subject to a defense of release, relinquishment, and abandonment. By asserting these defenses, Defendants are contending that by moving away from their New York lands, Plaintiffs gave up any rights they may have had in those lands. Defendants find some support for the availability of these defenses in Cayuga Indian Nation of New York v. Cuomo, 758 F.Supp. 107 (N.D.N.Y.1991), which discusses the availability of an abandonment defense in an Indian land claim action. The Cayuga court determined that the viability of the abandonment defense hinged on the type of title to the land held by the Indian plaintiffs. Id. at 110. The court concluded that there are two types of title, aboriginal title and fee title, and that while fee title cannot be abandoned, aboriginal title can. Id. Plaintiffs admit that aboriginal title may be abandoned, but contend that Indians may not abandon land given to them in a treaty with the United States by entering into an unlawful land transaction with the State. The question that must be resolved in order to determine the validity of Defendants’ defense is whether the Oneida Nation possessed aboriginal rights, over the land at issue or whether it possessed actual fee title to the land. This issue requires further discovery and a thorough statutory and treaty interpretation. The Court is unwilling at this point to rely on the legal and factual determinations of the test case and other Indian cases when this action presents unresolved issues of fact dealing with entirely different land transactions and requires an interpretation of the relevant treaties as they apply to the Oneida Nation specifically. See Oneida Test Case, 434 F.Supp. at 541 (stating that the Oneidas had never abandoned their claim to their ancestral homeland but not defining the term abandonment or interpreting any statute or treaty in that regard); see also United States v. Boylan, 265 F. 165, 167-68 (1920) (holding that Oneidas possessed a New York reservation of land, but not determining what that meant for an abandonment defense). Defendants’ abandonment, release and relinquishment defenses therefore remain. N. Statute of Limitations Defendants assert statute of limitations as an affirmative defense both generally, and, in the case of the Counties, specifically as to the Oneida of the Thames. Courts in Indian land claim cases have consistently held that no statute of limitations defense is available to defendants in these actions. In the test case, the Supreme Court rejected the Counties’ statute of limitations defense, noting that there is no federal statute of limitations in Indian land claim cases, and stating that “the borrowing of a state limitations period in these cases would be inconsistent with federal policy.” Oneida II, 470 U.S. at 241, 105 S.Ct. 1245; see also Seneca Nation of Indians v. State of New York, 93-CV-688A, 1994 WL 688262, at *1 (W.D.N.Y. Oct.28, 1994) (citing Oneida II and striking defendants’ statute of limitations defense in Indian land claim action); Oneida Indian Nation of New York v. City of Sherrill, 145 F.Supp.2d 226, 260 (N.D.N.Y.2001) (citing Oneida II and refusing defendants’ motion to amend their answer to include a statute of limitations defense in Indian land claim case); Oneida Indian Nation of New York v. State of New York, 691 F.2d at 1083 (“Defenses [in Indian claim cases] based upon ... state statutes of limitations have been consistently rejected.”). The Supreme Court supported its finding by discussing 28 U.S.C. § 2415, which defines timeliness for suits brought by the United States on behalf of tribes for which it is a trustee. See Oneida II, 470 U.S. at 241, 105 S.Ct. 1245; see also Oneida v. New York, 691 F.2d at 1083. The Supreme Court noted that 28 U.S.C. § 2415 reaffirmed the general federal policy that there is no statute of limitations applicable to Indian land claims. The Supreme Court then went on to discuss legislative history, unrelated to the United States’ trust relationship with Indian tribes, that further supports this general policy. In finding that the statute of limitations defense was unavailable to the test case defendants, the Supreme Court concluded decisively that “Indian land claims [are] exclusively a matter of federal law” and that “there is a congressional policy against the application of state statutes of limitations in the context of Indian land claims.” Oneida II, 470 U.S. at 241, 105 S.Ct. 1245. Defendants attempt to distinguish the Supreme Court’s ruling in the test case from this action. They argue that this case involves more land transactions and involves at least one plaintiff (the Oneida of the Thames) that does not have a trust relationship with the United States. Defendants argue that because the Supreme Court based its reasoning partly on federal policy implemented by its trust relationship with Indian tribes, its ruling does not apply to Indian tribes, such as the Thames Oneida, that lack this relationship. The Court does not find these differences compelling. The Thames Oneida was also a plaintiff in the test case, and the Supreme Court surely would have specified that its ruling was inapplicable to the Thames Oneida if that were the case. The Supreme Court’s ruling is sufficiently broad to cover the circumstances present in this action. The Supreme Court was not analyzing the statute of limitations defense only in the context of the one particular land transaction at issue in that case. Instead, its language is worded broadly, to apply to all land claims brought by or on behalf of Indian tribes. The ruling of the Supreme Court regarding congressional policy governing statute of limitations defenses in Indian land claims is clear and directly applicable here. Defendants’ statute of limitations defense is therefore stricken. O. Indispensable Parties The Court has addressed the Defendants’ motion to dismiss in which they claim that there are absent parties who are necessary and indispensable to this action. Since the Court has determined that none of the parties named by the Defendants are in fact necessary to this action, the Defendants’ affirmative defenses dealing with indispensable parties are stricken. P. Abatement Defendant New York State argues that since the Nonintercourse Act of 1793 was replaced by subsequent acts, the new statutes replaced the old and any cause of action under the old statute abated on its expiration date. In Oneida II the Supreme Court rejected this interpretation of the Nonintercourse Act, finding that in the subsequent revised acts, the pertinent provisions of the Act remained in force, containing “substantially the same restraint on Indian lands.” Oneida II, 470 U.S. at 245-46, 105 S.Ct. 1245 (citing Bear Lake and River Waterworks and Irrigation Co. v. Garland, 164 U.S. 1, 11-12, 17 S.Ct. 7, 41 L.Ed. 327 (1896) (finding that where similar provisions of an act have remained in force, a new act is considered to be a continuation of the old)). In Oneida I the Supreme Court performed a similar analy-ses of the Nonintercourse Act, concluding that it “put in statutory form what was or came to be the accepted rule—that the extinguishment of Indian title required the consent of the United States.” Oneida I, 414 U.S. at 678, 94 S.Ct. 772. In summary, the Supreme Court in Oneida II stated, “the precedents of this Court compel the conclusion that the Oneida’s cause of action has not abated.” Oneida II, 470 U.S. at 246, 105 S.Ct. 1245. There is no reason that the Supreme Court’s interpretations of the Nonintercourse Act in Oneida I and Oneida II do not apply to this action. Defendants’ abatement defense is therefore stricken. Q. Eleventh Amendment When litigation is brought by or could have been brought by the United States on behalf of an Indian Nation and the claims made by the United States are identical to those made by the Indian tribe, the Eleventh Amendment has been found not to apply. See, e.g., Oneida Nation of New York v. State of New York, 691 F.2d 1070, 1080 (2d Cir.1982) (finding that where the United States could have sued, “raising the same claims asserted by the Oneida Nation,” Eleventh Amendment immunity does not apply); see also Seneca Nation of Indians v. State of New York, 26 F.Supp.2d 555, 564 (W.D.N.Y.1998) (same, and stating that “the Senecas’ and the United States’ claims are virtually identical”). However, it is also a well established rule of law that the State should retain its immunity to the extent that the Plaintiffs raise any claims that conflict with those of the United States. See Seneca Nation of Indians v. State of New York, 178 F.3d 95, 97 (2d Cir.1999) (affirming defendants’ Eleventh Amendment immunity defense but noting that New York retains immunity to the extent that the Plaintiffs raise any claims or issues not identical to those made by the United States). In this action it appears that Plaintiffs may potentially have claims that conflict with those of the United States. It is too early in the proceeding to disregard the possible immunity of the State on issues in which there may be conflict. The State’s Eleventh Amendment immunity defense therefore remains to the extent that Plaintiffs’ claims conflict with those of the United States. R. Lost Title Presumption The defense of lost title allows a defendant to substitute presumptions about title to land for formal instruments or records. The defense “recognizes that lapse of time may cure the neglect or failure to secure the proper muniments of title.” United States v. Fullard-Leo, 331 U.S. 256, 270, 67 S.Ct. 1287, 91 L.Ed. 1474 (1947). A presumption of lost title defense is based largely on the same principles that underlie the defense of adverse possession, that a land grant “will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for 20 years.” Id. at 271, 67 S.Ct. 1287 (citation omitted). The defense of adverse possession is not available to Defendants in this action for the reasons stated above. See discussion supra p. 123, Part II.G. These principles apply equally to a presumption of lost title as they do to the defense of adverse possession. For this reason, Defendants’ presumption of lost title defense is stricken. S. Lack of Notice The State contends that Plaintiffs’ claims are barred or mitigated by Plaintiffs’ failure to notify the State of any potential liability as a result of the land transactions at issue. Plaintiffs attack this defense as arising under state law and therefore inappropriate as a defense to an Indian land claim action. The Court can find no precedent for this type of defense under federal law. Furthermore, the Court agrees with Plaintiffs that such a defense under state law is unavailable to Defendants in light of the Supreme Court rulings in Oneida I and Oneida II. The Court orders this defense stricken with leave to replead if Defendants are able to present some scenario under federal law through which this defense could succeed. T. Failure to State a Claim It is well settled that a failure to state a claim defense is an appropriate affirmative defense. See, e.g., County Vanlines, Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 153 (S.D.N.Y.2002). There are several outstanding issues of law and fact in this action that preclude an early finding that Defendants’ failure to state a claim defense is unavailable to them. In addition, unlike the other defenses asserted by Defendants, there is no prejudice presented by this defense. Therefore, the defense remain