The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
The plaintiff, Joan Peters, has moved pursuant to Fed. R. Civ. P. 65(b) and 42 U.S.C. § 1983 for a temporary restraining order against the defendant, Judge Robert C. Noonan, Genesee County Surrogate Judge, to stop Judge Noonan from probating a will made by her son, David C. Peters. The will purports to bequeath to various persons, pursuant to New York law, land and other property that is located within reservation territory of the sovereign Tonawanda Band of Seneca Indians (the "Nation") to which plaintiff Joan Peters claims rights under the Nation's laws that are superior to the rights of her deceased son. The plaintiff alleges that Judge Noonan's exercise of jurisdiction over the property of her son's estate located within reservation territory violates her rights as a member of the Nation that are granted or reserved to her by the United States Constitution and by two Native American Treaties. The will of David C. Peters also purports to bequeath substantial property located outside reservation territory.
In support of her motion for a temporary restraining order, plaintiff Joan Peters asserts that she may be evicted from her residence and a family business if Judge Noonan continues to probate the will of David C. Peters. She also alleges that, if she follows the laws of the Nation regarding inheritance, as she must, she risks criminal prosecution by New York authorities for not submitting to Judge Noonan's asserted authority under New York law. She seeks the temporary restraining order to protect her civil rights from irreparable harm pursuant to 42 U.S.C. § 1983.
For the reasons stated below, the Court denies plaintiff Joan Peters' motion for a temporary restraining order on the parties' written submissions and without a hearing pursuant to Fed. R. Civ. P. 79(b). The plaintiff asserts that she will suffer irreparable harm, but she is unable to establish that she will suffer a redressable injury that is within the Court's subject matter jurisdiction. Counsel for the parties and for the proposed intervenor, Thomas W. Peters, are directed to appear for a status conference on May 22, 2012, at 9:30 a.m., to set a schedule for submissions on why the case should not be dismissed for lack of subject matter jurisdiction and to address other matters.
On March 22, 2012, plaintiff Joan Peters filed a Complaint alleging violations of her rights under the U.S. Constitution and two Native American Treaties by Judge Noonan in his capacity as Genesee County Surrogate Judge as he probated the will of David C. Peters. The plaintiff invokes this Court's federal-question jurisdiction pursuant to 28 U.S.C. § 1331 and its civil-rights jurisdiction pursuant to 28 U.S.C. § 1343.
Plaintiff Joan Peters is an enrolled member of the Tonawanda Band of Seneca Indians. The plaintiff's son, David C. Peters, was an enrolled member of the Nation before he passed away in 2011. Thomas W. Peters is a co-executor of the estate of David C. Peters, his brother, and is also a son of plaintiff Joan Peters. Thomas W. Peters is also an enrolled member of the Nation. Among the primary beneficiaries of the will of David C. Peters that is being probated by Judge Noonan in Genesee County Surrogate's Court is Coreen Thompson, David C. Peters' daughter, who is the plaintiff's granddaughter. Coreen Thompson is also an enrolled member of the Nation.
Plaintiff Joan Peters alleges in her Complaint that the Nation is duly recognized as retaining sovereign authority to self-government, including the authority to determine uses of reservation lands*fn1 and to determine lines of inheritance among its members. The plaintiff maintains that the Nation's authority over these matters is exclusive and that the courts of New York state lack jurisdiction to probate any part of an estate of a member of the Nation involving property on or within reservation territory.
Plaintiff Joan Peters alleges that her son, David C. Peters, passed away on August 10, 2011. She alleges that she and her son had together managed and operated a family business known as the Arrowhawk Smoke and Gas Shop, located on premises within reservation territory in Genesee County, New York, for which the plaintiff holds Native American title. She alleges that her son also maintained a residence on premises within reservation territory to which she holds Native American title. The plaintiff specifically alleges and represents that she has valid and superior claims to allotment, ownership and inheritance under laws of the Nation that provide for matrilineal descent - inheritance through the maternal line - of the real property and the business of Arrowhawk Smoke and Gas Shop, of the premises of David C. Peters' residence on reservation territory, and of all other property of her son's that is located within reservation territory.
Plaintiff Joan Peters alleges that the will made by her son, David C. Peters, was offered for probate in the Genesee County Surrogate's Court, before Judge Noonan, on about September 19, 2011. The will provides, in part:
I[, David C. Peters,] direct that the Indian Tribal Council or Chiefs Council shall not control any portion of my estate administration other than any property rights, heirship or title restrictions, which can be controlled or governed only by Native American or Seneca law. In the event of any apparent possible or alleged conflict of laws, the laws of the State of New York shall prevail and all matters herein referred to shall be controlled according to New York State law. I make this decision, not because of any lack of respect and honor for my sovereign nation, the Seneca Nation of Indians, nor my status as a Native American, but because of my desire that all of my property be controlled by one set of laws no matter where the property (real or personal) may be located and that my entire estate be administered consistent with my overall financial plan.
This provision specifically acknowledges that disposition of some property of the estate of David C. Peters may be subject to exclusive control of the Nation. It purports to choose New York law over Native American or Seneca Nation of Indians law and follows a paragraph that chooses New York Surrogate's Court as the venue for probate of the will.
The will of David C. Peters bequeaths to various beneficiaries real and personal property that is located both on and off reservation territory. The will also contains a no-contest clause purporting to disinherit any beneficiary who opposes either probate of the will or the disposition of property of the estate according to the terms of the will. Plaintiff Joan Peters asserts that she is not contesting the will, even though she disputes that any of her deceased son's property on or within reservation territory is subject to New York law and even though she disputes that Judge Noonan, or any New York court, has jurisdiction over any of that property.
Plaintiff Joan Peters represents that the Genesee County Surrogate's Court has issued testamentary letters to co-executors named in the will and that Judge Noonan has taken other steps to probate the will of David C. Peters pursuant to an assertion of concurrent jurisdiction under 25 U.S.C. § 233, N.Y. Indian Law § 5, and other New York laws*fn2 . Some of Judge Noonan's actions to probate the will have been taken because of motions filed in Genesee County Surrogate's Court before Judge Noonan by legal counsel for Coreen Thompson, David C. Peters' daughter, the plaintiff's granddaughter, and a named beneficiary of land, the Arrowhawk Smoke and Gas Shop, and other property located on reservation territory purportedly disposed of by the will. Among other orders, Judge Noonan directed that a hearing be held for an allocation of assets and profits of the Arrowhawk Smoke and Gas Shop. On May 2, 2012, Judge Noonan ordered that books and records of the Arrowhawk Smoke and Gas Shop be made available to Coreen Thompson.
Plaintiff Joan Peters has not formally intervened as a party in the probate proceedings before Judge Noonan in the Genesee County Surrogate's Court, but she filed a written request that Judge Noonan refer the matter to the Nation so that the Nation could dispose of any property of her son's estate on or located within reservation territory under the Nation's law. Judge Noonan denied the plaintiff's request, but he directed that the plaintiff seek to intervene in the probate proceedings before him. She has declined to do so. The plaintiff has not explained why she has not appeared in the probate proceedings to make her jurisdictional arguments in the Genesee County Surrogate's Court.
In support of her motion for a temporary restraining order, plaintiff Joan Peters relies upon 42 U.S.C. § 1983, and this Court's preliminary injunction decision in Bowen v. Doyle, 880 F.Supp. 99, 116 (W.D.N.Y. 1995). The plaintiff relies upon the Treaty of November 11, 1794, 7 Stat. 44, the Treaty of 1857, 11 Stat. 735, the Commerce Clause, the Indian Commerce Clause, and the Equal Protection ...