The opinion of the court was delivered by: CURTIN
Alleging violations of 42 U.S.C. §§ 1981 to 1987
and 25 U.S.C. § 1302(5) and (8), the plaintiffs seek declaratory and injunctive relief and monetary damages against named officials of the Seneca Nation of Indians [hereinafter referred to as "the Seneca defendants"], and against the Fisher-Price Toys Division of the Quaker Oats Company [hereinafter referred to as "Fisher-Price"].
In a decision entered May 25, 1972, 348 F. Supp. 48, the court denied the plaintiffs' application for a preliminary injunction. The court also held that congressional enactment of 25 U.S.C. § 1302 implicitly waived the quasi-sovereign immunity of Indian tribes from suit in actions alleging violations of the section, but that the immunity doctrine would bar relief against a tribe for violations of 42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1986. The court further determined that the instant action was one against the Seneca Nation itself insofar as it sought declaratory and injunctive relief against the Seneca defendants, and that therefore such relief against the Seneca defendants for violations of 42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1986 was barred. Although it follows that the complaint states no claim of violations of these sections upon which declaratory and injunctive relief against the Seneca defendants can be granted, the court did not explicitly so hold. Indeed, the court did not discuss the question whether the complaint states a claim upon which relief can be granted. Compare Luxon v. Rosebud Sioux Tribe, 455 F.2d 698 (8th Cir. 1972).
Following the court's decision, the Seneca defendants moved for summary judgment. Fisher-Price joined in the motion and also sought an order dismissing the complaint for failure to state a claim upon which relief can be granted. At oral argument on August 4, 1972, the Seneca defendants reiterated the defense of failure to state a claim upon which relief can be granted, which had been raised in their answer.
In support of their motion for summary judgment, the Seneca defendants submitted affidavits which establish the following material facts as to which there is no genuine issue. In view of the court's disposition of the case, a statement of these facts is not necessary and is made only to describe the background of the litigation.
The Seneca Nation of Indians is a tribe of American Indians located on the Allegany, Cattaraugus and Oil Springs Reservations. The Constitution of the Seneca Nation, adopted November 15, 1898, vests legislative power in a Council of 16 members, executive power in a President and, subject to appeal to the Council, judicial power in Peacemakers and Surrogates Courts. The court takes judicial notice of the Seneca Constitution and the provisions thereof.
The Seneca Council has recently engaged in planning the expansion of an industrial park established in 1965 on the Cattaraugus Reservation. In the fall of 1971, the Council and Fisher-Price entered into negotiations for the location of a toy factory in the expanded industrial park. The negotiations resulted in an agreement under which the Seneca Nation would lease to Fisher-Price for a period of 25 years approximately 55 acres of land upon which the plant would be constructed. On April 8, 1972, the Council authorized execution of the agreement and a lease, but the documents have not yet been signed.
The toy factory contemplated by the agreement would cost $6,000,000. Under the agreement, the Seneca Nation would apply to the federal Economic Development Administration for a grant in the amount of $1,300,000 for development of the expanded industrial park. It would also invest in the development of the expanded park additional funds, estimated to amount to $250,000, available to it under Section 4 of the Seneca Rehabilitation Act of 1964, Pub. L. No. 88-533, § 4, 78 Stat. 738. In addition, the Nation would apply to the Economic Development Administration for a loan in the amount of $3,900,000 to finance 65% of the cost of the factory.
Fisher-Price would invest the remaining 35%, or $2,100,000. The Nation would have title to the plant and unencumbered ownership at the end of the lease period, during which time it would receive an annual rental fee of approximately $40,000.
On May 13, 1972, the Seneca Council enacted an ordinance for the acquisition of property in connection with the expansion of the industrial park. The ordinance provides procedures for condemnation of land and vests jurisdiction over such proceedings in the Peacemakers Court. Under the ordinance, the Court cannot exercise jurisdiction unless the Nation shows that it has made a good faith effort to negotiate for the purchase of the property at a fair valuation thereof.
On June 10, 1972, the Council adopted a resolution authorizing the acquisition by condemnation of the use interests in a parcel of land which it deems to be required for the expansion of the industrial park. The use interests are held by Lillian Kennedy and Mary Kennedy, two of the plaintiffs in this action. Each of the Kennedys has an undivided interest in half of the parcel. No proceedings to condemn the Kennedy interests have as yet been instituted.
As the court noted in its earlier decision, the plaintiffs' complaint is a confusing document. Because it fails to set forth separate claims for relief each alleging a violation of a particular statutory provision, one is forced to extrapolate the claims made therein. Several of the claims can be disposed of in short order.
Before turning to a discussion of the individual claims, however, the court again notes that its earlier decision established that the complaint does not state a claim of violations of 42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1986 upon which declaratory and injunctive relief can be granted against the Seneca defendants.
The complaint states no claim of violations of 42 U.S.C. §§ 1981 and 1982 upon which relief can be granted against any of the defendants. The sections prohibit only racially motivated deprivation of the rights enumerated therein. See Jones v. Alfred H. Mayer, 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968); Schetter v. Heim, 300 F. Supp. 1070, 1073 (E.D. Wis. 1969). The complaint, however, contains no allegation of racial discrimination. In addition, the complaint contains no allegation that any of the rights protected by 42 U.S.C. § 1981 have been violated.
The complaint states no claim of violations of 42 U.S.C. § 1983 upon which relief can be granted against any of the defendants. There is no allegation that Fisher-Price is acting under color of state law. Although there are allegations that the Seneca Nation is an instrumentality of the State of New York and that the Seneca defendants are therefore acting under color of state law, the court as a matter of law fails to find the state action requisite to a claim under 42 U.S.C. § 1983. The Seneca Nation is a tribe of American Indians which antedates the State of New York. Like other tribes, the Seneca Nation is a quasi-sovereign entity possessing all the inherent rights of sovereignty except where restrictions have been placed thereon by the United States itself. See United States v. Kagama, 118 U.S. 375, 381, 6 S. Ct. 1109, 30 L. Ed. 228 (1886). There may be dispute over whether in certain circumstances an Indian tribe is an instrumentality of the federal government. Compare Groundhog v. Keeler, 442 F.2d 674, 678 (10th Cir. 1971), with Colliflower v. Garland, 342 F.2d 369, 379 (9th Cir. 1965) (habeas corpus). But certainly an Indian tribe is not a state. See United States v. Kagama, supra, at 381, 6 S. Ct. 1109; Native American Church v. Navajo Tribal Council, 272 F.2d 131, 133-34 (10th Cir. 1959). Indeed an Indian tribe is not subject to the law of a state except so far as the United States has given its consent. Worcester v. Georgia, 6 Pet. (U.S.) 515, 560, 31 U.S. 515, 8 L. Ed. 483 (1832); United States v. Forness, 125 F.2d 928, 932 (2d Cir. 1942). See Haile v. Saunooke, 246 F.2d 293, 297-98 (4th Cir. 1957). In particular, the United States has paramount authority over Indian tribes in the State of New York, notwithstanding New York's status as one of the original 13 colonies, and, when New York ...