Native American Tribe Asserts Sovereignty Over Dispute Between Members: Does Tribal Council or Court Determine Rights at the Poospatuck Reservation?

This was originally published on the SGR Blog.

Our Courts regularly and routinely resolve mundane and general differences between Federal and State Law (e.g. the FAA v. the CPLR). But, as a recent case illustrates, the Court is sometimes confronted with more unusual and specific conflicts of law.

The Unkechaug Indian Nation is an Indian tribe recognized by the State of New York, which occupies the Poospatuck Reservation in Suffolk County. In this action, the Nation sought a declaratory judgment and a permanent injunction enforcing the Tribal Council’s April 12, 2018 decision and order confirming the right of Curtis C. Treadwell, a blood-right member of the Nation, to possess the whole of certain real property known as 198 Poospatuck Lane, including a disputed portion thereof, referred to by the defendant Danielle Treadwell, another blood-right member of the Nation, and SmokesRUs, Inc., as 194 Poospatuck Lane, all of which lies within the bounds of the Reservation. The Nation sought declarations that a 2010 certificate conferring possessory rights to the property on Curtis was valid, while a purported 2013 certificate conferring possessory rights to the disputed portion of the property on Danielle was 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 was authentic, and as such, was a final determination of the Tribal Government in the exercise of its sovereign authority, which was binding on the parties. But before it did so, Danielle and SmokesRUs, Inc. asserted counterclaims against the Nation seeking a declaration that Danielle was entitled to possession of the disputed portion of the property and that Curtis had no rights to the disputed portion.

In an order dated May 1, 2019, Supreme Court determined that, notwithstanding the Nation’s subsequent amendment of its complaint, by seeking declarations as to the possessory rights of Danielle and SmokesRUS in its initial complaint, the Nation 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, 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”.

Pursuant to that vote, the Tribal Council then adopted a resolution and directives which resolved that occupancy of the disputed portion of the property be withheld from Danielle and directed that she “cease and desist” from occupying, using, and possessing the property. On October 26, 2019, the Nation placed concrete barriers around part of the disputed portion.

Thereafter, Treadwell and SmokesRUS moved for a preliminary injunction against the Nation. The Nation moved for summary judgment with respect to the counterclaims, in effect, declaring that Danielle had no rights in or to the disputed portion of the property.

The Nation argued that the counterclaims were barred by the sovereign authority exercised by the Nation in determining that Danielle was an “undesirable person.” Treadwell and SmokesRUS opposed the Nation’s motion, arguing that the 2019 undesirability determination, and the subsequent resolution and directives, violated her rights under the Indian Civil Rights Act of 1968. 

 In an order dated March 11, 2020, 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 denied the Nation’s motion for summary judgment and Treadwell and SmokesRUS’ motion for injunctive relief, directed dismissal of the amended complaint, and, sua sponte, in effect, directed dismissal of the counterclaims for declaratory relief, as academic. Treadwell and SmokesRUS appealed. 

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. As such, tribes possess the common-law immunity traditionally enjoyed by sovereign powers. 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 property, the Nation waived its sovereign immunity as to that issue. However, a waiver of sovereign immunity could not, on its own, extend a court’s subject matter jurisdiction and waivers of sovereignty were to be strictly construed in favor of the Tribe.

Because of the retained sovereignty of Indian Nations, the subject matter jurisdiction of state courts must be predicated on explicit authorization from Congress to address matters of tribal self-government. Moreover, the courts of New York had rejected the paternalistic view that Indian Nations within its borders were disadvantaged by their inability to rely on New York courts to determine internal disputes since the use of dispute resolution mechanisms other than courts was itself an exercise of the right to self-govern in a manner consistent with tribal traditions and oral law. Thus, when it comes to Indian affairs, state courts were courts of limited jurisdiction.

Here, by bringing the April 2018 determination that Curtis was the rightful possessor of the subject property before the state Supreme Court and seeking a declaration and enforcement, the Nation waived its sovereign immunity, though only as to that determination and its enforcement. Accordingly, so long as the Nation relied on the April 2018 determination as to its basis for excluding Danielle from the property, the counterclaims seeking inverse declarations could proceed along with the Nation’s action for declaratory relief. However, once the Nation proceeded to take the undesirability vote in September 2019 and issue the tribal resolution and directives based upon the membership’s vote, the Nation, pursuant to its own Tribal Rules, created a new and independent basis, under its sovereign authority, for excluding Danielle from the property. Supreme Court properly recognized that once it was informed of the 2019 undesirability determination, it could not take any further action, as that was a sovereign act of the Nation outside the Court’s subject matter jurisdiction.

In merely apprising the Supreme Court of the 2019 undesirability determination, the Nation did not seek either validation or enforcement of that determination. Nor did the claim that the 2019 undesirability determination rendered review and enforcement of the 2018 determination academic constitute a waiver of sovereign immunity as to the 2019 undesirability determination.

Accordingly, Supreme Court correctly determined that, in light of the 2019 undesirability determination, it lacked subject matter jurisdiction over the dispute and that any determination regarding Danielle’s rights to the disputed portion of the subject property was rendered academic.

And Supreme Court did not err in declining to consider whether the Nation’s 2019 undesirability determination was entitled to recognition by State courts under principles of comity. The doctrine of comity, which applies to the acts of Indian Nations as well as those of the courts of sister states and foreign nations, provides that the courts of this State have the discretion to consider whether the determination comports with the laws and public policy of New York and to determine whether to enforce the determination. Here, however, since the Nation merely apprised the Court of the 2019 undesirability determination without asking for a review or enforcement, the issue of whether to grant comity to that determination was not raised. For the same reasons, there was no basis for the Court to address the contentions that the 2019 undesirability determination was obtained in violation of the Tribal Rules and the Indian Civil Rights Act. The Court determined that the 2019 undesirability determination was an exercise of the Nation’s sovereign authority.

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