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.
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
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
and improvement of low income dwellings. See Ordinance at Art.
II. The "sue and be sued" clause contained in the Ordinance
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 instant suit to proceed — there must also be a showing
of specific waiver of sovereign immunity." Id.
Indian tribes are treated as sovereign entities and function as
"distinct, independent political communities, retaining their
original natural rights in matters of local self-government."
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S.Ct. 1670,
56 L.Ed.2d 106 (1978) ("Santa Clara") (internal quotations
omitted); see also Ninigret Dev. Corp. v. Narragansett Indian
Wetuomuck Hous. Auth., 207 F.3d 21, 29 (1st Cir. 2000)
("Ninigret") ("The immunity rests on the status of Indian
tribes as autonomous political entities, retaining their original
natural rights with regard to self-governance."); Poodry v.
Tonawanda Band of Seneca Indians, 85 F.3d 874, 880 (2d Cir.),
cert. denied, 519 U.S. 1041, 117 S.Ct. 610, 136 L.Ed.2d 535
(1996). As such, "tribal courts have inherent power to exercise
civil jurisdiction over non-Indians in disputes affecting the
interests of Indians which are based upon events occurring on a
reservation." Weeks Constr., Inc. v. Oglala Sioux Hous. Auth.,
797 F.2d 668, 673 (8th Cir. 1986) ("Weeks").
It is well-settled that, absent abrogation or a clear and
unequivocal waiver, Indian tribes possess sovereign immunity.
See Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe
of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112
(1991); Santa Clara, 436 U.S. at 58, 98 S.Ct. 1670; Dillon v.
Yankton Sioux Tribe Hous. Auth., 144 F.3d 581, 583 (8th Cir.
1998); Ransom v. St. Regis Mohawk Educ. and Community Fund,
Inc., 86 N.Y.2d 553, 560, 635 N.Y.S.2d 116, 658 N.E.2d 989
(1995) ("Because preserving tribal resources and tribal autonomy
are matters of vital importance, the United States Supreme Court
has repeatedly stated that a waiver of tribal sovereign immunity
cannot be implied but must be unequivocally expressed.")
(internal quotations omitted). Notwithstanding their status as a
distinct and independent political entities, "Congress has
plenary authority to limit, modify or eliminate the powers of
local self-government which the tribes otherwise possess." Santa
Clara, 436 U.S. at 56, 98 S.Ct. 1670; see also Ninigret, 207
F.3d at 29 ("[T]he doctrine of tribal sovereign immunity
precludes a suit against an Indian tribe except in instances in
which Congress has abrogated that immunity or the tribe has
foregone it.") (citing Kiowa Tribe of Oklahoma v. Manufacturing
Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140
L.Ed.2d 981 (1998)); Poodry, 85 F.3d at 881; Weeks, 797 F.2d
at 673. "While tribal sovereign immunity is not absolute, waivers
of sovereign immunity are strictly construed." Seneca-Cayuga
Tribe of Oklahoma v. State of Oklahoma, 874 F.2d 709, 715 (10th
Cir. 1989); see also Ransom, 86 N.Y.2d at 561, 635 N.Y.S.2d 116,
658 N.E.2d 989 ("[W]aivers of immunity are to be strictly
construed in favor of the [t]ribe.") (internal quotations
The AHA, as an arm of the St. Regis Mohawk Tribe, "enjoys the
full extent of the Tribe's sovereign immunity." Ninigret, 207
F.3d at 29 (citing Dillon, 144 F.3d at 583-84; Weeks, 797
F.2d at 670-71); see also Hagen v. Sisseton-Wahpeton Community
College, 205 F.3d 1040, 1043 (8th Cir. 2000); Ransom, 86
N Y2d at 558-59, 635 N.Y.S.2d 116, 658 N.E.2d 989 ("Tribal
subagencies . . . created by the Indian Nation to further
governmental objectives, such as providing housing, health and
welfare services, may also possess attributes of tribal
sovereignty, and cannot be sued absent a waiver of immunity.").
Notably, Plaintiff does not dispute this point in her opposition
papers. See Pl. Mem. of Law at 1 ("Plaintiff agrees that Indian
tribes, and their entities and agencies, normally have sovereign
immunity against lawsuits.") Accordingly, for the purposes of the
instant motion, the AHA must be treated "as a tribal agency
rather than a separate corporate entity created by the [T]ribe."
Dillon, 144 F.3d at 583.
In Ninigret, the First Circuit was confronted with a similar
"sue and be sued" clause in a case where, as a requirement for
entering into a contract for the construction of a low-income
housing development, "HUD required the enactment of a tribal
ordinance containing pat terminology as a condition precedent to
an Indian housing authority receiving federal funds." 207 F.3d at
29-30. In finding that the "sue and be sued" clause, standing
alone, did not result in a waiver of the Housing Authority's
sovereign immunity, the First Circuit stated:
An occasional case appears to have held that the
enactment of such an ordinance, without more,
constitutes an effective waiver of sovereign
immunity. In our judgment, the better view holds that
the enactment of such an ordinance, in and of itself,
does not waive a tribe's sovereign immunity. After
all, the ordinance, by its terms, authorizes the
Authority to shed its immunity from suit "by
contract," and these words would be utter surplusage
if the enactment of the ordinance itself served to
perfect the waiver. Statutes and ordinances normally
should be read to give effect to every word and
phrase and there is no compelling reason to make this
case an exception.
Id. at 30 (internal citations omitted) (emphasis added).