The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM-DECISION AND ORDER
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.
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 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 ...