Unkechaug Indian Nation v. Treadwell

• Decision Date: 03 March 2021
• Docket Number: 2020–06690,2020–03645,Index No. 614783/18
• Citation: Unkechaug Indian Nation v. Treadwell, 192 A.D.3d 729, 144 N.Y.S.3d 44 (N.Y. App. Div. 2021)
• Parties: UNKECHAUG INDIAN NATION, respondent, v. Danielle TREADWELL, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 729

144 N.Y.S.3d 44

UNKECHAUG INDIAN NATION, respondent,

v.Danielle TREADWELL, et al., appellants, et al., defendants.

2020–03645

2020–06690

Index No. 614783/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 4, 2021

March 3, 2021

Long Tuminello, LLP, Bay Shore, N.Y. (Michelle Aulivola of counsel), for appellants.

Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Kevin Schlosser and Matthew A. Marcucci of counsel), for respondent.

REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that an April 12, 2018 decision and order of the Tribal Government regarding possessory rights to certain real property located within the Poospatuck Indian Reservation is a final and binding determination of the Tribal Government, in which the defendants Danielle Treadwell and SmokesRUs, Inc., asserted counterclaims for a judgment declaring, among other things, that the defendant Danielle Treadwell was entitled to possession of a portion of the subject real property, those defendants appeal from (1) an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated March 11, 2020, and (2) an order of the same court dated July 9, 2020. The order dated March 11, 2020, insofar as appealed from, sua sponte, in effect, directed dismissal of the counterclaims of the defendants Danielle Treadwell and SmokesRUs, Inc., and denied those defendants’ motion for a preliminary injunction. The order dated July 9, 2020, insofar as appealed from, denied those defendants’ motion for leave to renew and reargue their opposition to the plaintiff's motion for summary judgment with respect to their counterclaims, which had been determined in the order dated March 11, 2020.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order dated March 11, 2020, as, sua sponte, in effect, directed dismissal of the counterclaims is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the appeal from so much of the order dated July 9, 2020, as denied that branch of the motion of the defendants Danielle Treadwell and SmokesRUs, Inc., which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated March 11, 2020, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated July 9, 2020, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff payable by the defendants Danielle Treadwell and SmokesRUs, Inc.

The plaintiff, Unkechaug Indian Nation (hereinafter the Nation), is an Indian tribe recognized by the State of New York, which occupies the Poospatuck Reservation in Suffolk County (see Indian Law § 2 ; Matter of Spota v. Jackson, 10 N.Y.3d 46, 53, 48 n. 1, 853 N.Y.S.2d 520, 883 N.E.2d 344 ; Gristede's Foods, Inc. v. Unkechauge Nation, 660 F. Supp. 2d 442, 445 [E.D. N.Y.] ). In this action, the Nation seeks a declaratory judgment and a permanent injunction enforcing the Tribal Council's April 12, 2018 decision and order confirming the right of the defendant Curtis C. Treadwell, Sr. (hereinafter Curtis), a blood-right member of the Nation, to possess the whole of certain real property known as 198 Poospatuck Lane (hereinafter the subject property), including a disputed portion thereof, referred to by the defendant Danielle Treadwell (hereinafter Danielle), another blood-right member of the Nation, and the defendant SmokesRUs, Inc., as 194 Poospatuck Lane (hereinafter the disputed portion of the subject property), all of which lies within the bounds of the Poospatuck Reservation (hereinafter the April 2018 determination).

The Nation sought, inter alia, declarations that a 2010 certificate conferring possessory rights to the subject property on Curtis is valid, while a purported 2013 certificate conferring possessory rights to the disputed portion of the subject property on Danielle is null and void. The Nation thereafter amended its complaint to limit the scope of the cause of action for declaratory relief to the issue of whether the April 2018 determination is authentic, and as such is a final determination of the Tribal Government in the exercise of its sovereign authority which is binding on the parties; however, before it did so, Danielle and SmokesRUs, Inc. (hereinafter together the defendants), asserted counterclaims against the Nation seeking, inter alia, a declaration that Danielle was entitled to possession of the disputed portion of the subject property, and that Curtis had no rights to the disputed portion. In an order dated May 1, 2019, the Supreme Court determined, inter alia, that, notwithstanding the Nation's subsequent amendment of its complaint, by seeking declarations as to the defendants’ possessory rights in its initial complaint, the Nation had waived its sovereign immunity with respect to the inverse declarations sought by Danielle in her counterclaims.

Thereafter, on September 16, 2019, the Nation, pursuant to the Tribal Rules, Customs, and Regulations (hereinafter the Tribal Rules), convened a Special Meeting of its membership for the purpose of determining whether Danielle was an "undesirable person" within the meaning of article I, section IV, and article XVIII of the Tribal Rules such that she could be denied the right to occupy land within the Poospatuck Reservation. A majority of the voting members present at the Special Meeting voted to determine that Danielle was an "undesirable person" (hereinafter the 2019 undesirability determination). Pursuant to that vote, the Tribal Council then adopted a resolution and directives, which, inter alia, resolved that occupancy of the disputed portion of the subject property be withheld from Danielle and directed, inter alia, that she "cease and desist" from occupying, using, and possessing the disputed portion of the subject property. On October 26, 2019, the Nation placed concrete barriers around part of the disputed portion.

Thereafter, the defendants moved for a preliminary injunction against the Nation. The Nation moved for summary judgment with respect to the defendants’ counterclaims, in effect, declaring that Danielle had no rights in or to the disputed portion of the subject property. The Nation argued, inter alia, that the defendants’ counterclaims were barred by the sovereign authority exercised by the Nation in determining that Danielle was an "undesirable person." The defendants opposed the Nation's motion, arguing, inter alia, that the 2019 undesirability determination, and the subsequent resolution and directives, violated her rights under the Indian Civil Rights Act of 1968 ( 25 USC § 1301 et seq. ). In an order dated March 11, 2020, the Supreme Court found that the Nation's 2019 undesirability determination and the Tribal Council's actions based upon that determination rendered the action as a whole academic. Accordingly, the court, inter alia, denied the Nation's motion for summary judgment and the defendants’ motion for injunctive relief, directed dismissal of the amended complaint, and, sua sponte, in effect, directed dismissal of the defendants’ counterclaims for declaratory relief, as academic. The defendants moved for leave to renew and reargue their opposition to the Nation's motion for summary judgment. In an order dated July 9, 2020, the court denied the defendants’ motion. The defendants appeal from the orders dated March 11, 2020, and July 9, 2020.

When acting within its territorial boundaries and with respect to internal matters, an Indian Nation retains the sovereignty it enjoyed prior to the adoption of the United States Constitution except to the extent that its sovereignty has been abrogated or curtailed by Congress (see Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 ; United States v. Kagama, 118 U.S. 375, 381–382, 6 S.Ct. 1109, 30 L.Ed. 228 ; Cayuga Nation v. Campbell, 34 N.Y.3d 282, 291, 293, 117 N.Y.S.3d 105, 140 N.E.3d 479 ). As such, "tribes possess the common-law immunity traditionally enjoyed by sovereign powers" ( Oneida Indian Nation v. Phillips, 981 F.3d 157, 170 [2d Cir.] ). As the Supreme Court correctly determined in the May 1, 2019 order, in seeking a declaration with respect to Curtis's right to occupy the disputed portion of the subject property, the Nation waived its sovereign immunity as to that issue (see Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1244 [8th Cir.] ; Cayuga Indian Nation of New York v. Seneca County, New York, 260 F. Supp. 3d 290, 299 [W.D. N.Y.] ). However, "a waiver of sovereign immunity cannot, on its own, extend a court's subject matter jurisdiction" ( Oneida Indian Nation v. Phillips, 981 F.3d at 171 ), and "[w]aivers of [sovereignty] are to be strictly construed in favor of the Tribe" ( Wells Fargo Bank, N.A. v. Chukchansi Economic...