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Cayuga Nation v. Campbell

Supreme Court of New York, Fourth Department

July 25, 2018

CAYUGA NATION, BY AND THROUGH ITS LAWFUL GOVERNING BODY, CAYUGA NATION COUNCIL, PLAINTIFF-RESPONDENT,
v.
SAMUEL CAMPBELL, CHESTER ISAAC, JUSTIN BENNETT, KARL HILL, SAMUEL GEORGE, DANIEL HILL, TYLER SENECA, MARTIN LAY, WILLIAM JACOBS, WARREN JOHN, WANDA JOHN, BRENDA BENNETT, PAMELA ISAAC, ET AL., DEFENDANTS-APPELLANTS, AND COUNTY OF SENECA, INTERVENOR. (APPEAL NO. 1.)

          MARGARET A. MURPHY, P.C., ORCHARD PARK (MARGARET A. MURPHY OF COUNSEL), AND JOSEPH J. HEATH, SYRACUSE, FOR DEFENDANTS-APPELLANTS.

          JENNER & BLOCK LLP, WASHINGTON, D.C. (DAVID W. DEBRUIN, OF THE WASHINGTON, D.C. BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND BARCLAY DAMON LLP, ROCHESTER, FOR PLAINTIFF-RESPONDENT.

          PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND TROUTMAN, JJ.

         Appeal from an order of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), dated September 18, 2017. The order, insofar as appealed from, denied the motion of defendants to dismiss the complaint.

         It is hereby ORDERED that the order so appealed from is affirmed without costs.

         Memorandum: This litigation involves a long-standing dispute over which of two competing factions should have control of the Cayuga Nation (Nation), a sovereign Indian Nation and a member of the Haudenosaunee Confederacy, sometimes called the Iroquois Confederacy. Plaintiff, whose members constitute one of the two factions vying for control of the Nation (hereafter, plaintiff's members), commenced this action seeking declaratory and injunctive relief as well as money damages. In the complaint, plaintiff's members alleged that defendants, who are members of the other competing faction, were improperly in control of and trespassing on certain property of the Nation on which the Nation's offices and security center, a cannery, a gas station and convenience store, and an ice cream store were located. Plaintiff moved for various interim relief, including a preliminary injunction directing defendants to vacate the subject property. Thereafter, defendants moved to dismiss the complaint on, inter alia, the ground that Supreme Court lacked subject matter jurisdiction because this matter required a determination whether plaintiff or defendants constituted the proper governing body of the Nation. In support of their motion, defendants contended that such a determination was beyond the authority of the courts of New York inasmuch as it usurped the sovereign right of the people of the Nation to determine their own leadership. In appeal No. 1, defendants appeal from an order that, among other things, granted plaintiff's motion, issued a preliminary injunction, denied defendants' motion, and determined that no undertaking pursuant to CPLR 6213 (b) was required. We affirm.

         Defendants thereafter moved for leave to reargue their opposition to plaintiff's motion, and for an order staying the preliminary injunction and setting an amount for the undertaking. In appeal No. 2, defendants appeal from an amended order that, inter alia, denied that part of their motion for leave to reargue, but granted that part of their motion with respect to the undertaking. This Court subsequently modified the amended order by reducing the amount of the undertaking.

         Initially, we note that the amended order in appeal No. 2 insofar as it denied that part of defendants' motion for leave to reargue is not appealable (see Empire Ins. Co. v Food City, 167 A.D.2d 983, 984 [4th Dept 1990]). In addition, we note that defendants do not present any contentions on appeal with respect to the amended order in appeal No. 2, and thus they are deemed to have abandoned any issue with respect to that amended order (see Ciesinski v Town of Aurora, 202 A.D.2d 984, 984 [4th Dept 1994]). We therefore dismiss appeal No. 2 in its entirety (see Gaiter v City of Buffalo Bd. of Educ., 142 A.D.3d 1349, 1350 [4th Dept 2016]).

         By way of background in appeal No. 1, plaintiff and defendants have vied for control of the Nation for more than a decade (see Cayuga Indian Nation of N.Y. v Eastern Regional Director, 58 IBIA 171, 172-176 [2014]). Defendants contend that they constitute the lawful governing body of the Nation under its historical governing structure, which was established by its oral tradition and is comprised of Chiefs and certain citizens of the Nation who were appointed by the Clan Mothers. Plaintiff's members are other citizens of the Nation who contend that they constitute the lawful governing body inasmuch as the majority of the Nation's citizens support them as the Nation's leaders. They contend that the support of the Nation's citizens was affirmed by a procedure that was recognized by the Nation's oral law and traditions and that permitted determinations on matters of great importance to be made by the entire Nation.

         Before defendants took control of the relevant property, plaintiff effectively controlled the Nation because the United States Department of the Interior, Bureau of Indian Affairs (BIA), continued to recognize two of plaintiff's members as the Nation's federal representative and alternative representative for interactions between the Nation and the federal government even after the split between the factions occurred, including recognizing those members of plaintiff as the payees for any federal funds paid to the Nation. The BIA continued to recognize those members of plaintiff because they were the last federal representative and alternative federal representative authorized by the Nation to interact with federal government prior to that split.

         After defendants took control of the relevant property, plaintiff commenced a prior action in Supreme Court seeking to regain control of the property. The court dismissed the complaint on the ground that it lacked subject matter jurisdiction to determine which faction should control the property inasmuch as any such determination required the court to intervene in the Nation's internal government affairs. Although the BIA thereafter attempted to broker a settlement between the parties, those negotiations were unsuccessful.

         In 2016, plaintiff and defendants each submitted to the BIA competing Indian Self-Determination and Education Assistance Act (ISDA) 638 Proposals (638 Proposals) (see generally 25 USCA § 5321), which are requests for federal funding for the Indian tribal organization's infrastructure, education or other needs. Significantly, both parties' 638 Proposals sought funds to maintain the Nation's office, which, as noted, is located on the subject property. When the BIA was unable to negotiate a settlement of the competing proposals, the Eastern Regional Director of the BIA (BIA Regional Director) requested that the parties submit briefs supporting their respective positions that they are the true governing body of the Nation. In response, plaintiff presented evidence that it engaged in an initiative, i.e., a statement of support process, pursuant to which a majority of the Nation's citizens indicated that they recognized plaintiff as the lawful governing body of the Nation. Defendants submitted evidence indicating that they were the lawful governing body of the Nation pursuant to its long-standing traditions, and that the Nation's oral laws and traditions prohibited a majority-rule "election" such as the one conducted by plaintiff. Plaintiff countered by submitting evidence that the Great Law of Peace, by which the Nation is governed, permits matters of great importance to be determined by the entire Nation rather than by the Clan leaders. The BIA Regional Director determined that the BIA would recognize plaintiff as the lawful governing body of the Nation for purposes of the 638 Proposals, and awarded the ISDA contract to plaintiff.

         In making his determination, the BIA Regional Director identified several reasons why the BIA was required to determine which faction controlled the Nation in addition to deciding which 638 Proposal to accept, including that the BIA needed to make determinations regarding a Liquor Control Ordinance proposed by plaintiff and the Nation's application to conduct Class II gaming on its property. The BIA Regional Director concluded that the federal government required a specific entity with whom to negotiate when resolving those matters. In recognizing plaintiff as the Nation's governing body, the BIA Regional Director concluded that, "[v]ia the statement of support process, a significant majority of the Cayuga citizens have stated their support for [plaintiff. He therefore could not] consider this outcome as anything other than resolution of a tribal dispute by a tribal mechanism. [He] consider[ed himself] obligated to recognize the result of that tribal process." Defendants appealed that determination, which was affirmed by a decision of the Acting Assistant Secretary of Indian Affairs. Defendants also commenced a federal district court proceeding challenging the BIA's determination, but that court declined to overturn it (Cayuga Nation v Zinke, 302 F.Supp 3d 362, 364 [D DC 2018]).

         Thereafter, plaintiff commenced this action and, as relevant, defendants challenge only that part of the order denying their motion to dismiss the complaint for lack of ...


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