The opinion of the court was delivered by: Matsumoto, United States District Judge
Before the court is a motion to stay this action by the defendants Shinnecock Indian Nation; Gordell Wright, Frederick C. Bess, and Randy King*fn1 , each sued in his official capacity as an alleged senior official of the Shinnecock Nation; Lance A. Gumbs, in his individual capacity, and the Shinnecock Trading Post (together, "Gumbs defendants"); Dianne Vieira; Raindrop's Quick Stop; Brian N. Bess; BNB Tobacco Products; and True Native Smoke Shop (collectively, "Shinnecock defendants") pending a Bureau of Indian Affairs ("BIA") determination of the tribal status of the Shinnecock Nation. For the following reasons, the Shinnecock defendants' motion to stay is granted with the limitation that if the BIA has not made a final determination on the Shinnecock's tribal status by August 1, 2010, the Shinnecock defendants shall make a showing to the court as to why the stay should not be lifted.
On March 20, 2006, plaintiff Gristede's Foods, Inc. ("Gristede's" or "plaintiff") commenced this action against the Unkechauge Nation, a/k/a Unkechauge Poospatuck Tribe (the "Unkechauge" or "tribe") and the Shinnecock Tribe, a/k/a the Shinnecock Indian Nation (the "Shinnecock"); individual defendants Harry Wallace ("Wallace"), Randall King, James W. Eleazer, Jr., and Lance A. Gumbs; and the Poospatuck Smoke Shop and Trading Post (the "Poospatuck Smoke Shop" or "Smoke Shop") and Shinnecock, Ltd. Plaintiff, the owner of several supermarkets in the New York City metropolitan area and on Long Island, New York, alleged violations of RICO and the Lanham Act, and state law claims for unjust enrichment, unfair competition, deceptive trade practices, and false advertising resulting from defendants' tax-free cigarette sales and advertising.
In July 2006, the defendants who were a party to the action at the time filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that they are immune from suit by virtue of their sovereign immunity as Indian tribes. In an order of December 22, 2006, the court deferred ruling on the motion pending further briefing and an evidentiary hearing on the tribal status of the Shinnecock and Unkechauge defendants. After filing a motion for reconsideration, the defendants were granted leave to file new Rule 12 motions, and the motions to dismiss pursuant to Rule 12(b)(1) and for reconsideration were subsequently withdrawn without prejudice to reinstatement if the new Rule 12 motions were denied.
On November 5, 2007, the court denied in part the defendants' motion to dismiss pursuant to Rule 12(b)(6) and the parties renewed their motion to dismiss pursuant to Rule 12(b)(1). (Doc. No. 75.) The court set a discovery schedule and hearing for the proposed Rule 12(b)(1) motion. On December 21, 2007, plaintiff filed its Amended Complaint to include those claims sustained by the court - the false advertising claim under the Lanham Act and the state consumer fraud claims - and to name Lance A. Gumbs in his individual capacity for his ownership and operation of the Shinnecock Trading Post, previously identified as Shinnecock, Ltd. (Doc. No. 82.) The Shinnecock, Randall King, James W. Eleazer, Jr., Lance A. Gumbs, and Shinnecock Trading Post defendants subsequently decided not to pursue the Rule 12(b)(1) motion and obtained an order vacating their sovereign immunity discovery schedule.*fn2 (1/4/08 Order granting Motion to Terminate Discovery Plan.)
On August 18, 2008, plaintiff filed a Second Amended Complaint which included additional defendants who are parties to this motion: Gordell Wright, Frederick C. Bess, Dianne Vieira, Raindrop's Quick Stop, Brian N. Bess, BNB Tobacco Products, and True Native Smoke Shop, among others not in the original complaint. (Doc. No. 142.) On October 10, 2008, defendants Wright, Bess, Gumbs, the Shinnecock Trading Post, and the Shinnecock answered the Second Amended Complaint and asserted counterclaims against plaintiff.*fn3 (Doc. Nos. 404, 405.) Defendants BNB Tobacco Products, Brian N. Bess, Dianne C Vieira, Raindrop's Quick Stop, and True Native Smoke Shop were granted an extension of time to file their Answer until twenty days from entry of this Memorandum & Order. (Order 2/11/09.)
II. The Shinnecock Indian Nation's Pending BIA Application
Over thirty years ago, on September 5, 1978, the Department of the Interior ("DOI") promulgated regulations for tribal recognition of Indian groups through the BIA. 25 C.F.R. § 83, et seq. (2006). The Shinnecock Nation was listed as a group petitioning for recognition in a list published by the DOI on January 2, 1979.
The BIA has not, to date, made a decision as to the tribal status of the Shinnecock and, in 2005, the United States District Court for the Eastern District of New York considered the tribal status of the Shinnecock for the purpose of determining whether the tribe could construct a casino on Shinnecock land. New York v. Shinnecock Indian Nation, 400 F. Supp. 2d 486 (E.D.N.Y. 2005). The court held that the Shinnecock met the federal common law definition of a "tribe" as articulated in Montoya v. United States, 180 U.S. 261 (1901). Shinnecock Indian Nation, 400 F. Supp. 2d at 493. However, despite the determination of Shinnecock's tribal status through federal common law, the DOI did not place the Shinnecock on the list of federally recognized tribes, promulgated pursuant to the Federally Recognized Indian Tribe List Act of 1994. 25 U.S.C. § 479a, et seq.
The Shinnecock subsequently sued the BIA alleging undue delay in determining the petition for tribal recognition and violation of the Administrative Procedures Act and the List Act. Shinnecock Indian Nation v. Kempthorne, No. 06-cv-5013, 2008 U.S. Dist. Lexis 75826, at *1 (E.D.N.Y. Sept. 30, 2008). As a result of the litigation, the Shinnecock was granted a waiver which moved the Shinnecock to the top of the DOI's list and established a timetable for the DOI's decision about the Shinnecock's tribal status. On October 6, 2008, United States Attorney Benton Campbell submitted a letter in the Shinnecock Indian Nation v. Kempthorne case stating that the DOI will issue a proposed finding on the Nation's petition "within one year from the date the petition is placed on active consideration (November 10, 2009)."*fn4 (Shinnecock Defs.' Mem., Ex. 2 at 2.)
As a result of this recent development regarding its pending BIA application for tribal recognition, on November 13, 2008, the Shinnecock, together with Wright, Bess, Gumbs, and the Shinnecock Trading Post defendants, requested leave to file a motion to stay this action pending the BIA's determination on the Shinnecock's tribal status. (Doc. No. 424.) The motion to stay on behalf of the Shinnecock defendants was fully briefed on February 6, 2009. Subsequently, on May 28, 2009, the Shinnecock defendants filed a letter informing the court that the Shinnecock and the BIA entered into a Stipulation and Order in Shinnecock Indian Nation v. Kempthorne establishing a timeline for final determination of the Shinnecock Indian Nation's petition for federal recognition ("Shinnecock Stipulation and Order"). (Doc. No. 491.) Pursuant to the Shinnecock Stipulation and Order, a proposed finding on the Shinnecock's petition will be made on or before December 15, 2009 and the Shinnecock defendants anticipate that a final determination will be issued "by or before the middle of next year (approximately July 19, 2010)." (Doc. No. 491.)
I. Shinnecock Defendants' Motion to Stay Pending the BIA Determination
In the present motion before the court, the Shinnecock defendants argue that a stay pending a determination of tribal status by the BIA is warranted because, should the Shinnecock be placed on the BIA's list of federally recognized tribes, it will be immune from suit. Accordingly, defendants argue that the defendant smoke shops and owners thereof would enjoy the tribe's immunity as entities of the tribe.
As discussed in Gristede's Foods, Inc. v. Unkechauge Nation,--- F. Supp. 2d ----, 2009 WL 3235181, at *21 (E.D.N.Y. Oct. 8, 2009), "an Indian tribe is subject to a suit only where Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe of Okla. v. Mfg. Techs, Inc., 523 U.S. 751, 754 (1998). To enjoy sovereign immunity, a group of Indians must be a tribe recognized by federal law. Pursuant to federal law, a group of Indians is a tribe if it either: 1) has been federally recognized by Congress or the BIA; or 2) meets the common law definition first articulated by the Supreme Court in Montoya v. United States, 180 U.S. 261 (1901). See United States v. Sandoval, 231 U.S. 28, 46-47 (1913); Native Village of Tyonek v. Puckett, 957 F.2d 631, 635 (9th Cir. 1992). Therefore, should the BIA recognize the Shinnecock as a tribe, the Shinnecock would be entitled to immunity from suit. Likewise, defendants Wright, Bess, and King, as sued in their official tribal capacities, would share in the Shinnecock's immunity.
Even if the Shinnecock is recognized as a tribe by the BIA, however, the additional Shinnecock defendant smoke shops and individuals sued in their individual capacity must establish that they are "arms of the tribe" in order to share in its immunity. See, e.g., Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1292-96 (10th Cir. 2008) (holding that tobacco manufacturer had sovereign immunity as an enterprise of the tribe, which deprived the district court of subject matter jurisdiction); Allen v. Gold Country Casino, 464 F.3d 1044, 1046-47 (9th Cir. 2006) (holding that casino was entitled to tribal sovereign immunity as an arm of the tribe); accord Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 358 (2d Cir. 2000) ("It may be that the district court will conclude, upon further analysis, that the museum is an agency of the Tribe and, as such, is entitled to benefit from the Tribe's immunity."). Therefore, although the BIA's ...