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July 19, 2000


The opinion of the court was delivered by: McAVOY, District Judge.


I. Background

On November 12, 1999, Plaintiff Hilda Garcia commenced the instant action against Defendants Akwesasne Housing Authority ("AHA") and John Ransom, in his personal capacity, alleging, inter alia, that Defendants unlawfully terminated her employment with the AHA.

Plaintiff is a Native American who is not a member of the St. Regis Mohawk Tribe. Defendant AHA is a housing authority whose stated purpose is to provide public housing on the Akwesasne Reservation using federal funds administered by the Department of Housing and Urban Development ("HUD"). At all times relevant to this action, Defendant Ransom was the Chairman of the Board of Commissioners of the AHA. See Amended Compl. at ¶¶ 6-9. The impetus for the instant action was Plaintiff's termination from her position as the Executive Director of the AHA. Plaintiff's termination was formally ordered in a Tribal Resolution executed by members of the Tribal Council on June 25, 1999.*fn1

In an Amended Complaint filed January 24, 2000, Plaintiff brings federal claims against Defendants pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq. ("ICRA"), and 42 U.S.C. § 1983 (the ICRA and section 1983 claims are based on whistle blower/retaliation violations). See id. at ¶¶ 46-54. Plaintiff also asserts state-based claims against Defendants for wrongful termination (based on alternate theories of breach of contract, primary estoppel and violation of public policy) and retaliatory discharge, in violation of N.Y. CIV. SERV. LAW § 75-b,*fn2 see id. at ¶¶ 55-67, and brings a separate state-based claim against Defendant Ransom for tortious interference with contract, see id. at ¶¶ 68-73. In connection with these claims, Plaintiff seeks injunctive relief, reinstatement, compensatory and punitive damages, and attorney's fees and costs.

On January 7, 2000, Defendants moved to dismiss the First Verified Complaint pursuant to FED. R. CIV. P. 12(b)(1). See Notice of Motion (Docket No. 10). On January 21, 2000, Plaintiff served and filed an Amended Complaint in the present action pursuant to FED. R. CIV. P. 15(a). See generally Amended Compl. (Docket No. 7). Because Defendants' motion to dismiss addressed the original Complaint, rather than the Amended Complaint, the Court ordered that Defendants' motion to dismiss the original Complaint be denied as moot. See Garcia v. Akwesasne Housing Authority, 99-CV-1975 (Decision and Order dated March 21, 2000). In the present motion, Defendants AHA and Ransom move to dismiss the Amended Complaint for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1). Because Defendants challenge the Court's subject matter jurisdiction over the instant action, materials outside the pleadings will be considered. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); Williams v. Muller, 2000 WL 487954, at *2 (S.D.N.Y. Apr.25, 2000). The Court will treat the instant motion separately with respect to Defendants AHA and Ransom.

II. Discussion

In seeking to dismiss the instant action, Defendant AHA argues that as an agency of the St. Regis Mohawk Tribe (the "Tribe"), it is entitled to sovereign immunity and, thus, this Court lacks jurisdiction with respect to Garcia's claims.*fn3 See Defts. Mem. of Law at 4-11. In response, Plaintiff argues that the "sue and be sued" clause contained in the Tribal Ordinance ("Ordinance") establishing the AHA operates as an express waiver of the AHA's sovereign immunity and, thus, this Court has jurisdiction with respect to Plaintiff's claims. See Pl. Mem. of Law at 1-9. Because the issue of whether the AHA is entitled to sovereign immunity turns on the language of the "sue and be sued" clause contained in the Ordinance, an examination of that provision and the terms and conditions of the Ordinance is warranted.

The AHA was established pursuant to Tribal Ordinance and was organized for the purpose of: (1) remedying unsafe and unsanitary housing conditions on the St. Regis Mohawk Reservation; (2) alleviating the shortage of safe and sanitary dwellings for low income persons; and (3) providing employment opportunities through construction and improvement of low income dwellings. See Ordinance at Art. II. The "sue and be sued" clause contained in the Ordinance provides:

The Council hereby gives its irrevocable consent to allowing the [AHA] to sue and be sued in its corporate name, upon any contract, claim or obligation arising out of its activities under this ordinance and hereby authorizes the [AHA] to agree by contract to waive any immunity from suit which it might otherwise have; but the Tribe shall not be liable for the debts or obligations of the [AHA].

Id. at Art. V(2) (emphasis added).

Each party interprets the instant clause differently. Plaintiff contends that the clause operates, on its face, as an express and unequivocal waiver of tribal sovereign immunity. Defendants, on the other hand, contend that the clause is not self-executing, but rather requires the execution of a separate written contract waiving tribal sovereign immunity.

A. The Status of Indian Tribes and Sovereign Immunity

"The waiver of sovereign immunity is a prerequisite to subject-matter jurisdiction, . . . but the issues of subject-matter jurisdiction and sovereign immunity are nonetheless wholly distinct." Presidential Gardens Assocs. v. United States ex rel. Secretary of Hous. and Urban Dev., 175 F.3d 132, 139 (2d Cir. 1999) (internal quotations and citations omitted). "A showing of jurisdiction is not alone sufficient to allow the ...

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