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Vacco v. Harrah's Operating Co.

September 28, 2009

DENNIS C. VACCO AND JOSEPH E. BERNSTEIN, INDIVIDUALLY IN THEIR CAPACITIES AS LITIGATION TRUSTEES OF THE CATSKILL LITIGATION TRUST, PLAINTIFFS,
v.
HARRAH'S OPERATING COMPANY, INC., AND CLIVE CUMMIS, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Plaintiffs commenced this action "to enforce a money-judgment (the 'Judgment') for $1,787,000,000, plus interest and costs, issued by a Native American tribal court against non-Native Americans." Compl. ¶ 6. The Judgment was issued on default in the Tribal Court of the Saint Regis Mohawk Tribe on March 20, 2001. Id. ¶¶ 11-22. Two prior actions commenced in this Court concerned the same judgment. The first, Park Place Entertainment Corp., et al. v. Arquette, et al., 00-CV-0863 ("Arquette I" or "the Injunction Action"), sought, inter alia, to enjoin the Tribal Court action in which the Judgment was issued. See Compl. ¶ 8(a); see also Compl. in Arquette I. The second, Arquette et al. v. Park Place Entertainment Corp. & Cummis, 01-CV-1058 ("Arquette II" or "the First Enforcement Action"), sought to enforce the Judgment. See Compl. ¶ 8(a); see also Compl. in Arquette II. Both prior actions were dismissed without prejudice based upon reported settlements. See Compl. ¶ 8(a); see also 3/31/03 "Judgment Dismissing Action Based Upon Settlement" in Arquette I [dkt. # 50 ]; 3/31/03 "Judgment Dismissing Action Based Upon Settlement" in Arquette II [dkt. # 56].

The current action seeks, "in effect, [to] reinstate[]" Arquette II to enforce the March 20, 2001 Judgment issued in the Tribal Court. Compl. ¶ 8(a). Defendants moved to dismiss the action pursuant Fed. R. Civ. P. 12(b)(6) on the grounds that: (a) the named Plaintiffs are improper parties because they obtained their interest in the Judgment pursuant to an assignment prohibited by New York Judiciary Law § 489(1); and (b) the issue raised in this action was previously settled. See generally, Def. Mem. L. [dkt. # 16-2]. Plaintiffs opposed the motion. See generally Plt. Mem. L. [dkt. # 17-1]. The Court denied the motion with leave to renew as a Rule 56 motion because the parties relied on factual materials beyond the pleadings. See 10/29/08 Dec. & Ord., dkt. # 42.

After a period of limited discovery, Defendants filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56 seeking to dismiss the action for several reasons, including that the issue raised in this action was previously settled. See Def. Mot., dkt. # 45, # 48. Plaintiffs opposed the motion, dkt. # 49 - # 55, and Defendants filed a reply. See Reply dkt. # 58. The motion is now before the Court on the papers submitted.

II. STANDARD OF REVIEW

The standard to review a motion for summary judgment is well settled, adequately set forth by the parties in their memoranda of law, and need not be repeated here. The Court will apply this standard to the pending motion.

III. BACKGROUND

This case arises in the midst of a long-standing dispute within the St. Regis Mohawk Tribe ("the Tribe") regarding the system of governance in the Tribe, and the uncertainty by the Executive Branch of the U.S. government as to which system of tribal government it would recognize for purposes of interaction with the U.S. government. See United States v. Sandoval, 231 U.S. 28, 46-47, 34 S.Ct. 1, 5-6 (1913)(tribal status for purposes of recognition by the U.S. government is determined by Congress, not the courts); United States v. Holliday, 70 U.S. 407, 419 (1865) (if "the executive and other political departments" recognize an Indian tribe "this court must do the same"); Iron Crow v. Ogallala Sioux Tribe of the Pine Ridge Reservation, 129 F. Supp. 15, 19 (D.S.D. 1955) (Congress has delegated to the Bureau of Indian Affairs and the Secretary of the Interior the authority to recognize tribal courts), aff'd 231 F.2d 89 (8th Cir. 1956); see also Ransom v. Babbitt, 69 F. Supp. 2d 141 (D.D.C. 1999) ("In situations of federal-tribal government interaction where the federal government must decide what tribal entity to recognize as the government, it must do so in harmony with the principles of tribal self-determination."). The historical background relevant to U.S. government recognition of Tribal authority is provided only to give historical context to the circumstances existing at the time that the central and determinative issue on this motion occurred.

The history of the internal conflicts relating to the government of the Tribe up to 1999 is set forth in detail in the Ransom decision. Id. at 143-47. In summary, "[f]rom 1802 until 1995 . . . the Tribe operated under a Three Chief System of government whereby three Chiefs, elected by Mohawk voters, together acted as the Tribe's governing body for staggered, three-year terms." Id. at 143. The BIA recognized the Three Chief System of government as the legitimate government of the St. Regis Mohawk Tribe during this period.

In June of 1995, the Tribe held a referendum on a proposed new tribal constitution which would have replaced the Three Chiefs system with a government consisting of three branches, including a tribal court. Id. By its own terms, the proposed constitution required a 51% vote of the Tribe to be validly adopted. Id. The constitution narrowly failed to receive the requisite 51% vote in the June 1995 referendum. Id. Notwithstanding the failure of the constitution to be validly adopted, the Mohawk Tribal Clerk certified that the constitution had in fact been adopted and the then-existing Chiefs began to operate as the Tribal Legislative Council under the new constitution. Id.

The failure of the proposed constitution to receive 51% of the vote created internal conflict within the Tribe, leading to a second referendum on June 5, 1996, in which the Tribe was asked to vote on the validity of the constitution. By a vote of 651 to 339, the Tribe rejected the constitution's validity. Id. at 144. In subsequent referenda in 1996, the Tribe voted for the election of a new slate of chiefs and, by a vote of 394 to 17, voted that the Tribal Court was without authority. Id. at 144-46.

Despite the failure of the constitution to be validly adopted and the subsequent referenda in which the Tribe disclaimed that the proposed constitution had any effect, the BIA initially recognized the constitutional government as the legitimate government of the St. Regis Mohawk Tribe. Id. at 144-45. The newly-elected Three Chiefs brought an action in federal court in the District of Columbia (the Ransom v. Babbitt case) seeking judicial review of the BIA's decision. In May 1999, the Three Chiefs government passed a resolution rescinding the Tribe's Judiciary Act of 1994 (which had established the Tribal Court) thereby abolishing the Tribal Court. The group within the Tribe opposed to the Three Chiefs system of government asserted that, at the time this resolution was passed, the Three Chiefs system of government was not recognized by the Tribe or the DOI as the government of the Tribe. Thus, this group contended that the Three Chiefs lacked authority to rescind the Judiciary Act of 1994, and the Tribal Court continued to operate.

The District Court of the District of Columbia ruled on September 30, 1999 in Ransom that the BIA had acted arbitrarily and capriciously in refusing to recognize the Three Chiefs government. Id. at 155. The BIA took an appeal from that decision. However, the BIA advised the Three Chiefs on February 4, 2000 that, pending appeal of the Ransom decision, the BIA would recognize the Three Chiefs system of government. See Carpinello Decl. Ex. I. The BIA field representative's decision to recognize the Three Chiefs was appealed by the proponents of the constitutional government, and, on April 24, 2000, their appeal was rejected by the Director of the Eastern Region of the BIA. See Carpinello Decl. Ex. J. That decision, in turn, was appealed to the Interior Board of Indian Appeals ("IBIA") which determined that any appeal would be stayed pending the results of an upcoming election in June 2000. See Carpinello Decl. Ex. K. The sitting Three Chiefs were reelected in that election and moved to dismiss the administrative appeal. That motion was granted on August 25, 2000. See Carpinello Decl. Ex. L.

In April of 2000, an agreement was reached between the St. Regis Mohawk Tribal Council and Park Place Entertainment Corporation (Park Place*fn1 ) to develop an Indian gaming casino in cooperation with the Tribe in Monticello, New York. Shortly after the agreement was reached, a faction of the Tribe opposed to the Three Chiefs system of government and the Tribal Council - the Arquette parties - filed a class action lawsuit in a tribal court established under the constitutional government (the "Tribal Court") against Park Place and its officers. The action sought (a) to annul the Tribal Council's agreement with Park Place, and (b) billions of dollars in damages for the alleged tortious interference with the relationship between the Mohawk Tribe and another company (Monticello Raceway Development Co., L.L.C.) that purportedly had already entered into a contract with the Mohawk Tribe for the development of a casino in Monticello.

On June 2, 2000, Park Place and its officers commenced an action in this court against the named-plaintiffs in the Tribal Court action (the "Arquette Parties")*fn2 seeking (1) a declaration that the Tribal Court was without proper authority, and (2) an injunction barring the litigation in the Tribal Court. See Park Place Entertainment Corp., et al. v. Arquette, et al., 00-CV-0863 (Arquette I ). The Arquette Parties appeared in the federal court action through counsel, Michael Rhodes-Devey, Esq. This Court determined that it lacked subject matter jurisdiction to entertain the matter and dismissed the action on September 16, 2000. See Park Place Entertainment Corp., et al. v. Arquette, et al., 113 F. Supp.2d 322 (N.D.N.Y. 2000). The decision was appealed to the United States Court of Appeals for the Second Circuit.

On October 6, 2000, the BIA advised the Three Chiefs that it had withdrawn its appeal of the Ransom decision and had "recognized the Chiefs elected under the Tribe's traditional government. Accordingly, the Department is now precluded from recognizing the former constitutional government, including the judicial system established under that constitution." See Carpinello Decl. Ex. M. The BIA further stated:

As the recognized governmental authority at Akwesasne and in the absence of a governing document adopted by the people, the St. Regis Mohawk Tribal Council determines what authority, if any, its governmental units may exercise. Since you have determined that the "constitutional faction" and its court system are without any legislative authority, the Bureau of Indian Affairs shall disregard any issuance by that "court" of any summons, appearance notices, suits, etc.

Id. at ¶ 3 .

On March 20, 2001, a default judgment in the amount of $1,787,000,000, plus interest and costs, was issued against Park Place and its officers in the Tribal Court. On June 27, 2001, the Arquette Parties commenced Arquette II (Arquette et al. v. Park Place Entertainment Corp. & Cummis, 01-CV-1058) in this Court seeking to enforce the Tribal Court Judgment against Park Place and one of its officers, Clive Cummis. The Arquette Parties were represented in Arquette II by attorney Henry M. Greenberg, Esq.

On March 29, 2001, Park Place and Cummis commenced an action in New York State Supreme Court against most of the Arquette parties and their attorney, Michael Rhodes-Devey, alleging claims for defamation and prima facie tort arising from the Tribal Court action. Although commenced in New York County, the case was transferred to Franklin County, New York and has been referred to by the parties as "the Franklin County Action."

Sometime between March 20, 2001 and May 14, 2001, the "Catskill Group" (consisting of groups of casino developers, including Monticello Raceway Development Co., L.L.C., in favor of the development and management by Monticello Raceway Development Co., L.L.C. of a casino at the Monticello Raceway in Sullivan County, New York), brought an action in the Southern District of New York against Park Place claiming tortious interference with contractual relations, interference with prospective business relationships, and violations of the Donnelly Act. See Catskill Dev., L.L.C. v. Park Place Entm't Corp., 144 F. Supp.2d 215 (S.D.N.Y. 2001). The claims in that action, which included a tortious interference with contractual relations claim similar to that asserted in the Tribal Court, were eventually dismissed en toto after years of litigation. See Catskill Dev., L.L.C. v. Park Place Entm't Corp., 547 F.3d 115 (2d Cir. 2008). Familiarity with the numerous decisions in the "Catskill Group litigation" is presumed.

On August 20, 2001, Defendants in Arquette II moved for summary judgment in this Court, contending, inter alia, that the Tribal Court did not exist under Tribal law and, therefore, the Judgment was a nullity and could not be enforced in federal court.*fn3

Plaintiffs cross-moved for summary judgment in the same action on October 30, 2001.*fn4

The motions were scheduled to be decided, based upon the written submissions alone, at the Court's January 14, 2002 motion calendar.*fn5

On January 12, 2002, the Second Circuit Court of Appeals issued a Summary Order on the appeal in Arquette I (Park Place Entertainment Corp., et al. v. Arquette, et al.), ordering that Arquette I be remanded to the district court for further development of the record with regard to the letter of Michael J. Anderson, Deputy Assistant Secretary of the United States Department of the Interior ("DOI"), to Chiefs Ransom, Smoke and Thompson of the Saint Regis Mohawk Tribal Council, dated October 6, 2000 (indicating that the DOI is precluded from recognizing the constitutional government and constitutional court of the St. Regis Mohawk Tribe), the impact of this letter, if any, on the [ ] disposition of the case, and the DOI's current position with regard to the legitimacy of the constitutional government and constitutional court.

Summary Order, Park Place Entertainment Corp., et al. v. Arquette, et al., 00-9365 (2d Cir. 2001).*fn6

On remand and after several conferences with United States Magistrate Judge David Peebles to develop the record as mandated by the Second Circuit's Summary Order, the Court issued an order on July 29, 2002 that provided as follows:

The parties have now had numerous conferences with Judge Peebles and together have explored the current position of the DOI on the governing structure of the St. Regis Mohawk Tribe. It now appears that the DOI recognizes the Three Chiefs system of government for the Tribe, and that a Tribal Council Resolution invalidated the Tribal Court system. Further, the Court notes that it appears a referendum vote was held by the Tribe in which the Tribe voted the Tribal Court was without ...


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