Cayuga Nation, Lakeside Enters., Inc. v. Jacobs

• Decision Date: 19 May 2014
• Citation: 44 Misc.3d 389,2014 N.Y. Slip Op. 24132,986 N.Y.S.2d 791
• Parties: CAYUGA NATION, Lakeside Enterprises, Inc. Clint Halftown, Tim Twoguns, Gary Wheeler, Richard N. Lynch, and B.J. Radford, Plaintiffs, v. William JACOBS, Samuel George, Bernadette Hill, Brenda Bennett, Karl Hill, Alan George, Pamela Isaac, Chester Isaac, Daniel Hill, Justin Bennett, Samuel Campbell, and John Does 1–100, Defendants.
• Court: New York Supreme Court

44 Misc.3d 389

986 N.Y.S.2d 791

2014 N.Y. Slip Op. 24132

CAYUGA NATION, Lakeside Enterprises, Inc. Clint Halftown, Tim Twoguns, Gary Wheeler, Richard N. Lynch, and B.J. Radford, Plaintiffs,

v.William JACOBS, Samuel George, Bernadette Hill, Brenda Bennett, Karl Hill, Alan George, Pamela Isaac, Chester Isaac, Daniel Hill, Justin Bennett, Samuel Campbell, and John Does 1–100, Defendants.

Supreme Court, Seneca County, New York.

May 19, 2014.

Daniel French, Esq. & Lee Alcott, Esq., of Counsel, David W. DeBruin, Esq., Pro Hoc Vice, & Joshua M. Segal Pro Hoc Vice, French–Alcott, PLLC, On Behalf of the Plaintiffs.

Joseph J. Heath, Esq., On Behalf of the Defendants.

Frank F. Fisher, Esq., On Behalf of Seneca County.

DENNIS F. BENDER, J.

This Court has multiple applications in front of it. The named plaintiffs are individual Cayuga Indians, a Cayuga Nation enterprise, and purportedly, the Cayuga Nation itself. The named defendants, as well as presumably the “John Does”, are also all individual Cayuga Indians. The complaint alleges causes of action for trespass, conversion, tortious interference with prospective business relations, replevin and ejectment. All of the actions revolve around an alleged illegal “take over” of the Nation's Offices, its two Lakeside Trading Facilities, and its 154 acre farm, on April 28, 2014.The plaintiffs request a determination that trespass, conversion, and tortious interference occurred, and seek an order directing the defendants and their agents to immediately vacate the properties and surrender personal property taken. They further ask that the defendants and their agents be preliminarily and permanently enjoined from entering the properties, exercising any control over personal property at the locations, and from taking any action to disrupt the commercial activities of the Nation or its affiliates.

An order to show cause was issued by this Court which included a temporary restraining order against the defendants.

The plaintiffs subsequently brought a second application requesting the Court to make some specific directions concerning service of the original order to show cause, and a third application seeking a finding of contempt upon the failure of the defendants to comply with the restraining order.

The defendants responded by moving to dismiss the complaint in its entirety on various grounds including among others, that this Court lacks subject matter jurisdiction pursuant to CPLR section 3211(a)(2), and that the Court lacks personal jurisdiction over the individually named defendants pursuant to CPLR section 3211(a)(8), because they are all leaders of the Cayuga Nation acting in their official capacities and therefore may be not be sued without their consent.

Thereafter, Seneca County, in which this action was initiated, moved to intervene, seeking an order dismissing the action or directing its removal to the federal courts, and directing the Cayuga Nation to reimburse Seneca County for any costs incurred enforcing any orders which result from this action.

All matters were made returnable on May 16, 2014.¹

At oral argument, the Court first granted the pro hac vice applications of David W. DeBurin, Esq. and Joshua M. Segal, Esq., to appear on behalf of the plaintiffs, finding the requisite showing of good standing and said applicants' familiarity with the standards of professional conduct within New York State was made pursuant to 22NYCRR520.11. It also granted Seneca County's application to intervene.

Subject Matter Jurisdiction

The plaintiffs argue that this Court has jurisdiction to determine the underlying civil causes of action pursuant to 25 U.S.C. section 233 and Indian Law Section 5. “Although New York Courts do not have subject matter jurisdiction over the internal affairs of Indian Tribes, (see Bowen v. Doyle, 880 F.Supp. 99, 122–123), they do have subject matter jurisdiction over, inter alia, “private civil claims by Indians against Indians”. ( People v. Anderson, 137 A.D.2d 259, 270, 529 N.Y.S.2d 917 (4th Dept.1988); accord, Seneca v. Seneca 293 A.D.2d 56, 58–59, 741 N.Y.S.2d 375 (4th Dept.2002).

The plaintiff's argument has strong surface appeal. While questions of fact certainly exist regarding the specifics of the incidents of April 28, 2014, there is no question but that the businesses and property involved are Cayuga Nation property, and it is not denied that the actions of the defendants disrupted businesses activity. It is no less evident that at least some of the defendants have no respect for this Court's temporary order which would have maintained the previous status quo.² As counsel for the plaintiffs seem to suggest, it would seem to fly in the face of reason to argue that there is nothing this Court can do.

Counsel for the plaintiffs further argues strenuously that this Court does not need to resolve the issue of leadership of the Nation. Well detailed was the history, much undisputed, of the status of the individually named plaintiffs amongst the Nation's ruling authorities, and their past and present involvement in the running of the Nation's affairs. Much was also made of the history of Mr. Halftown as the recognized representative of the Nation for the Bureau of Indian Affairs (BIA.)

Clearly however, this is not a simple case of “private civil claims of Indians against Indians”, and thus, contrary to plaintiffs' counsel's suggestion during oral argument, a ruling contrary to the plaintiffs does not mean that “anyone acting under color of Indian Law is entitled to take possession.” Although the plaintiffs argue that their causes of action are directed at individuals, the responding papers make clear, and the plaintiffs do not question, that three of the named defendants are council members and three others are clan mothers, all thus being in one capacity or another, Cayuga Nation leaders.³ It is equally evident that the plaintiffs' contention is that the named defendants are orchestrating the actions of the “John Doe” defendants. Notably, there is a dearth of allegations regarding any direct involvement by any of the named defendants at any of the incidents.

The conceded underlying dispute between the factions regarding the proper identity of the Nation's ruling council's membership as well as the federal representative to the BIA is longstanding. While it appears that plaintiffs Halftown, Twoguns and Wheeler were at some point properly made members of the ruling council, and that Halftown was properly appointed as the federal representative for dealings with the BIA, less clear is their current status. Alleged in the affidavit of defendant Samuel George is the assertion that in late May and early June of 2011, pursuant to Cayuga Law and custom, the clan mothers of the Cayuga Nation “reformed” the governing Nation Council, retaining three of the Council's BIA recognized members and removing and replacing Plaintiffs Halftown, Twoguns, and Wheeler. (Paragraph 6, George Affidavit). The affidavit also sets forth, which is not in dispute, that the Franklin Keel, the Director of the Eastern Region of the BIA, recognized that change in government, and found defendants Jacobs and George to be the federal representatives designated by the new Nation's Council (August 19, 2011 letter from the United States Department of Interior to Attorneys Daniel J. French, Lee Alcott and Joseph Heath, attached to Defendants' moving papers). Although that determination was later vacated, (58 IBIA 171), such was on procedural grounds. Predicated upon the Interior Board of Indian Appeals (IBIA)'s curious determination that there were no pending issues between the Nation and the BIA, it stated it was not appropriate for the determination to be made.Further, even though the BIA has not recognized anyone other than Halftown as the representative of the Nation, the BIA has emphasized that his authority is defined and controlled by the Nation and not by the BIA. George, et al v. Eastern Regional Director BIA, 49 IBIA 164 (2009).

Most recently, a letter dated May 15, 2014, was sent by Director Keel, which seeks presentations to the BIA by the two factions addressing whether “(1) .... there are [now] matters pending before the Region ... that .... trigger the need for a decision as to who is the Nation's federal representative; and (2) whom the region should recognize as the leadership of the Cayuga Nation.” The plaintiffs' attorney made much of the fact the letter states that “the region will maintain the status quo with respect to the Cayuga Nation's draw down authority”. Notably however, it was limited to the sole identified issue, and more important, the correspondence also states that the decision to do so “does not express any view recognizing either side.” That letter, as well as the above cited decision of the IBIA vacating Mr. Keel's previous decision on...