in accordance with the Orders of the Peacemakers Court. He further argues that, unless the State Court action is enjoined, the sovereign authority of the Nation to determine matters of self-government within its own forums will be irreparably damaged by subordination of the Nation's sovereignty to the State Courts.
The State Defendants take the position that the State Court properly exercised jurisdiction over this dispute and that, in any event, this Court should not interfere with the State Court proceedings. More specifically, the State Defendants argue that the Anti-Injunction Act, 28 U.S.C. § 2283; the Younger abstention doctrine; and the United States Supreme Court's decision in United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 70 L. Ed. 138, 46 S. Ct. 1 (1925), all bar this Court from enjoining the State Court action. In other words, it is the State Defendants' position that Bowen should be required to litigate the issue of the State Court's jurisdiction in the state court system, with ultimate review by the United States Supreme Court.
The defendants-intervenors similarly argue that this Court is barred from enjoining the State Court action
and that Bowen must litigate the jurisdiction issue in the State Courts. They also argue that the State Court has jurisdiction over this dispute pursuant to 25 U.S.C. § 233. They contend that, under § 233, Congress granted New York courts concurrent jurisdiction with the Peacemakers Courts over all civil actions involving members of the Nation, including cases where, as here, there is a dispute between officials of the Nation's government regarding the scope of their respective authorities and powers under the Constitution and laws of the Nation. They further argue that sovereign immunity does not bar the State Court action because: (1) they sued Bowen in his individual capacity for acts he allegedly committed outside the scope of his authority under the Nation's Constitution and laws; and (2) the State Court is applying tribal, not state, law. Moreover, defendants-intervenors argue that the exhaustion of tribal remedies doctrine does not apply in this instance because: (1) the doctrine does not apply to states such as New York where Congress has expressly granted concurrent jurisdiction to the state courts; (2) the Nation's Peacemakers Court is corrupt and biased; and (3) the claims and parties in the Peacemakers Court action are not identical to those in the State Court action. Finally, as stated earlier, defendants-intervenors argue that this action and the State Court action are now moot because Bowen has been impeached as President of the Nation.
II. Preliminary Injunction Standard
The standard for issuing a preliminary injunction is well-settled in the Second Circuit. The party seeking the injunction must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief. Able v. United States, 44 F.3d 128, 130, 1995 WL 4928, at *2 (2d Cir. January 3, 1995); Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). While this standard does not explicitly mention the public interest, as do some other Circuits' standards, the Second Circuit has recognized that a federal court, when acting as a court of equity, "may go much further both to give or to withhold relief in furtherance of the public interest than where only private interests are involved." Standard & Poor's Corp. v. Commodity Exch., Inc., 683 F.2d 704, 711 (2d Cir. 1982) (quoting Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1121 (2d Cir. 1975), cert. denied, 426 U.S. 911, 48 L. Ed. 2d 837, 96 S. Ct. 2237 (1976)); Carey v. Klutznick, 637 F.2d 834, 839 (2d Cir. 1980) ("The public interest has always been a factor to be considered in the granting of a preliminary injunction."). "When significant public interests are involved, courts have a special obligation to assess carefully the propriety of preliminary injunctive relief." Stieberger v. Bowen, 801 F.2d 29, 34 (2d Cir. 1986). Applying this standard to the instant case, the Court finds that Bowen is entitled to injunctive relief.
III. Likelihood of Success on the Merits19
The Court finds that plaintiff is likely to succeed on the merits of this action. First, under the Treaty of 1794 and well-settled case law, the Nation retains the right to self-government and exclusive jurisdiction over its internal affairs and the State Defendants therefore lack jurisdiction to adjudicate such a dispute. Second, the pendency of the Peacemakers Court action, which concerns the same dispute and was filed prior to the State Court action, renders the State Court without jurisdiction to proceed. Third, the State Court action is barred by the doctrine of sovereign immunity. Fourth, none of the abstention or procedural bars cited by the State Defendants and the defendants-intervenors apply to prevent this Court from granting an injunction in this case. Finally, neither the State Court action nor this action is moot.
A. Under the Treaty of 1794 and Well-Settled Case Law, the Nation Retains the Rights to Self-Government and Exclusive Jurisdiction Over its Internal Affairs.
Under the Treaty of 1794 and well-settled case law, the Nation holds the right to self-government. The Supreme Court so held over 125 years ago in Fellows v. Denniston, 72 U.S. (5 Wall.) 761, 18 L. Ed. 708 (1867) and the Second Circuit so recognized in United States v. Boylan, 265 F. 165 (2d Cir. 1920).
In Fellows, the Court held that, under the Treaty of 1794, the United States "acknowledged the [Seneca] reservations to be the property of the Seneca nation--that they will never claim them nor disturb this nation in their free use and enjoyment, and that they shall remain theirs until they choose to sell them. These are the guarantees given by the United States, and which her faith is pledged to uphold." Id. at 768. As the Court held, unless and until the Seneca are lawfully removed from their lands, "they are to be regarded as still in their ancient possessions, and are in under their original rights, and entitled to the undisturbed enjoyment of [their lands]." Id. at 770.
Indeed, it is well-settled that the right of self-government is a right held by Indian tribes in their capacity as sovereign entities. As the Supreme Court held in the historic Cherokee cases, an Indian tribe is a "distinct political society . . . capable of managing its own affairs and governing itself," Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16, 8 L. Ed. 25 (1831), and retains the "right of self-government." Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 556, 8 L. Ed. 483 (1832). By entering into treaties, Indian Tribes did not "surrender [their] independence--[their] right to self-government." Id. at 561. To the contrary, "implicit in these treaty terms . . . was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed." Williams v. Lee, 358 U.S. 217, 221-22, 3 L. Ed. 2d 251, 79 S. Ct. 269 (1959).
This fundamental principle--that Indian tribes retain the right to self-government--has been repeatedly reaffirmed by the Supreme Court. It is now well-settled that "the sovereignty retained by tribes includes 'the power of regulating their internal and social relations.'" New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 332, 76 L. Ed. 2d 611, 103 S. Ct. 2378 (1983) (quoting United States v. Kagama, 118 U.S. 375, 381-82, 30 L. Ed. 228, 6 S. Ct. 1109 (1886)), and that this authority includes the "power to make their own substantive law in internal matters and to enforce that law in their own forums." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 56 L. Ed. 2d 106, 98 S. Ct. 1670 (1978) (citations omitted); see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18, 94 L. Ed. 2d 10, 107 S. Ct. 971 (1987); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 n.14, 71 L. Ed. 2d 21, 102 S. Ct. 894 (1982); United States v. Wheeler, 435 U.S. 313, 322, 55 L. Ed. 2d 303, 98 S. Ct. 1079 (1978); Ex parte Crow Dog, 109 U.S. 556, 572, 27 L. Ed. 1030, 3 S. Ct. 396 (1883).
It is equally well-settled that tribal authority over internal matters is exclusive. In Talton v. Mayes, 163 U.S. 376, 41 L. Ed. 196, 16 S. Ct. 986 (1896), a Cherokee Indian challenged his conviction for murder in a Cherokee court on the ground that he had been indicted by a grand jury consisting of only five jurors in violation of the Fifth Amendment to the United States Constitution and the Constitution and laws of the Cherokee Nation. The Court held that the powers of self-government exercised by the Cherokee Nation existed prior to the United States Constitution, and thus were not limited by its terms. Id. at 384. As for the alleged violations of the Cherokee Constitution, the Court refused to address these questions, holding that they were "solely matters within the jurisdiction of the courts of that nation." Id. at 385. More recently, the Court reaffirmed the same rule in LaPlante, 480 U.S. at 19, holding that unless the tribal court lacks jurisdiction, "proper deference to the tribal court system precludes relitigation of issues raised . . . and resolved in the Tribal Courts."
The basis of these established legal principles--the right to tribal self-government and the exclusivity of jurisdiction over internal tribal affairs-and of their consistent reaffirmation by the Supreme Court, is the rule that Indian tribes, as sovereign entities, retain all rights not specifically withdrawn by treaty or federal law. In Worcester, the Supreme Court read the Treaty of Hopewell, November 28, 1785, 7 Stat. 18, to be a grant of rights by--not to--the Cherokee, and held that the Tribe retained those aspects of their sovereignty not specifically ceded or surrendered. Id. at 553-54. As the Supreme Court explained in United States v. Winans, 198 U.S. 371, 49 L. Ed. 1089, 25 S. Ct. 662 (1905), "the treaty was not a grant of rights to the Indians, but a grant of rights from them--a reservation of those rights not granted." Id. at 381. Accordingly, it is now well-established that, under the reserved rights doctrine, "Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." Wheeler, 435 U.S. at 323. "Because the Tribe retains all inherent attributes of sovereignty that have not been divested by the Federal government, the proper inference from silence. . . is that the sovereign power . . . remains intact." Merrion, 455 U.S. at 149.
A necessary corollary to the rights of Indian tribes to self-government and to exclusive jurisdiction over their internal affairs is the principle that state law does not apply on the reservations. In Worcester, the Supreme Court held that the law of the State of Georgia had no force within the boundaries of the Cherokee Nation. "The Cherokee nation, then, is a distinct community, occupying its own territory . . . in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress." 31 U.S. at 561; see also Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831). As the Court explained in Warren Trading Post v. Arizona Tax Comm., 380 U.S. 685, 686-87, 14 L. Ed. 2d 165, 85 S. Ct. 1242 (1965), "from the very first days of our Government, the Federal Government had been permitting the Indians largely to govern themselves, free from state interference." See also Ramah School Bd. v. Bureau of Revenue, 458 U.S. 832, 846, 102 S. Ct. 3394, 73 L. Ed. 2d 1174 (1982); McClanahan v. Arizona Tax Comm'n, 411 U.S. 164, 168, 36 L. Ed. 2d 129, 93 S. Ct. 1257 (1973); Rice v. Olson, 324 U.S. 786, 789, 89 L. Ed. 1367, 65 S. Ct. 989 (1945).
Indeed, this Court followed the rule against state interference in internal tribal affairs in United States v. Charles, 23 F. Supp. 346 (W.D.N.Y. 1938). In Charles, an action to set aside a deed, this Court held that the Tonawanda Senecas had the right to self-government and that this right rendered "interference . . . by injunction of the state courts . . . an unwarranted and unlawful disturbance of the right of the Indians to the free use and enjoyment of its tribal property and a violation of treaties guaranteeing these rights." Id. at 348. The Court recognized that:
The right of a tribe to govern itself in accord with tribal laws and customs without interference or dictation from the state courts has been upheld by the highest court of New York state. Mulkins v. Snow, 232 N.Y. 47, 133 N.E. 123; Patterson v. Seneca Nation, 245 N.Y. 433, 440, 157 N.E. 734.