The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
These two actions were brought by the Canadian St. Regis Band of Mohawk Indians and seven individuals who allege membership in either the Canadian St. Regis Band or the American St. Regis Mohawk Tribe.
In 82-CV-783, plaintiffs seek a declaration that they own and are entitled to possess some 12,000 acres of land in northern New York State; they also seek trespass damages for the approximately 130-170 years during which they have been out of possession. Plaintiffs contend that the subject land was reserved to the Indians of the Village of St. Regis in the Treaty with the Seven Nations of Canada, 7 Stat. 55 (1796), and is subject to a restraint against alienation under the Nonintercourse Act, 25 U.S.C. § 177.In addition to their claim directly under the Nonintercourse Act, plaintiffs also assert a claim based on 42 U.S.C. § 1983, alleging the deprivation, under color of state law, of rights, privileges and immunities secured under the Constitution and laws of the United States.
The second action, 82-CV-1114, is a suit to recover possession of certain islands in the St. Lawrence River, along with trespass damages for the period of dispossession and other relief. Plaintiffs allege that, until 1814, these islands were considered part of British North America, and that Indian ownership had been recognized by the British. The islands were transferred to the United States as a result of a boundary survey pursuant to the Treaty of Ghent, 8 Stat. 218 (1814), which ended the War of 1812. Plaintiffs contend that New York State subsequently disposed of the islands in violation of the Treaty of Ghent and the Nonintercourse Act. As in 82-CV-783, plaintiffs also allege a deprivation, under color of state law, of their rights privileges and immunities secured under the Constitution and laws of the United States. As a third claim, plaintiffs contend that the flooding of certain land by defendants St. Lawrence Seaway Development Corp. and/or the Power Authority of the State of New York amount to a taking in violation of the Fifth Amendment.
At this juncture, plaintiffs seek certification, in both actions, of a plaintiff class comprised of "all descendants of the Indians of the Village of St. Regis." The seven individual plaintiffs are to represent the class. Plaintiffs contend that the criteria of Rule 23 Fed. R. Civ. P. are satisfied. Turning first to the prerequisites in Rule 23(a) they maintain that (1) the class includes some 6,000 individual members of the Canadian Band and American Tribe, and is thus too numerous to make joinder of all the members practicable; (2) questions concerning, inter alia, the ownership of the land and the validity of the conveyances to or transfer by the state are questions of law and fact common to the class; (3) the claims of the representatives, three of whom are members of the Canadian Band and four of whom are members of the American tribe, are typical of the claims of the class; (4) the class representatives intend to vigorously press the class claims, and their attorneys are competent and experienced, therefore the interests of the class are adequately protected.
Turning next to the further requirements of Rule 23(b), plaintiffs contend that the actions fall within categories (b)(2) and (b)(3):
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
The briefs filed by the attorney general, the ten collectively represented defendants, the Power Authority of the State of New York, and the United States Attorney on behalf of the St. Lawrence Seaway Development Corporation raise a number of objections to class certification.Each, however, emphasizes one argument in particular: individual Indians lack standing to assert these tribal claims.
The concept of standing embraces both constitutional limitations on the power of federal courts and prudential limitations on the exercise of that power.Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). To satisfy the minimal constitutional requirements of Article III, a plaintiff must be able to show "that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," that the injury "fairly can be traced to the challenged action," and that the injury "is likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982).To satisfy the prudential standing limitations that the Supreme Court has recognized, "the plaintiff must generally assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties," and the plaintiff's complaint must "fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Valley Forge, supra, 454 U.S. at 474-75.
When plaintiff's standing is placed in issue, the court is concerned not with "the merits of plaintiff's contention that particular conduct is illegal", but whether the plaintiff is the proper party to assert that claim. Warth v. Seldin, supra, 422 U.S. at 500; see Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37-38, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976). However, the nature of the claim can be determinative of the standing issue. As the Supreme Court explained in Warth v. Seldin:
The actual or threatened injury required by Article III may exist solely by virtue of "statutes creating legal rights, the invasion of which creates standing. . . ." (citations omitted). Moreover, the source of the plaintiff's claim to relief assumes critical importance with respect to prudential rules of standing that, apart from Art. III's minimum requirements, serve to limit the role of courts in resolving public disputes. Essentially, the standing question in such cases is whether the constitutional or statutory ...