Unkechaugh Indians Seek to Enjoin Criminal Activity at Smoke Shop on Poospatuck Reservation

This was originally published on the SGR Blog.

Court Decides if Tribal Nation Entitled to Preliminary Injunction Under NYS Indian Law

The Unkechaug Indian Nation sued the operators of the Indian Creek Smoke Shop for contravention of the Indian Nation Tribal Council’s resolution to permanently ban the Smoke Shop from doing business on the Poospatuck reservation. The reservation is the land of the Indian Nation and the members of the Nation reside there. It was undisputed that the Council brought the proceeding pursuant to its duly adopted resolution and its customs, rules, and regulations.

The complaint alleged that the operators initially were granted a license to construct the Smoke Shop, and that the Smoke Shop was not built in accordance with the conditions in the initial resolution so that construction was to cease pursuant to a Tribal Council resolution dated October 29, 2010. Those issues were resolved and the Smoke Shop construction was completed.

The Council received complaints of criminal activity at the Smoke Shop, including shootings, drug dealing, and prostitution. The Council issued a resolution revoking the license in August 2014. Upon representations that illegal activities would cease, the Council re-issued the license in September 2014, with the caveat that the license would be revoked permanently should illegal activities re-occur.

The complaint alleged that, since the time of the license reissuance, gang members had been operating the Smoke Shop business, numerous shootings had taken place, and drug dealing had been occurring at the Smoke Shop premises. On March 30, 2017 the Council issued a resolution to ban the Smoke Shop from doing business on the reservation permanently. The Nation then filed suit and sought a temporary restraining order to cease operation of the Smoke Shop, enjoin the illegal activities taking place on the site, and for the Suffolk County sheriff to padlock and close the Smoke Shop. The application was denied.

The Nation’s complaint contained four causes of action: trespass, nuisance, ejectment of intruders pursuant to Article 2, Section 8 of the NYS Indian Law, and a permanent injunction. No opposition to the motion for a preliminary injunction or answer to the complaint was filed. The Nation had not yet moved for a default judgment.

In order to prevail on a motion for a preliminary injunction, the movant must demonstrate, by clear and convincing evidence: (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) a balancing of equities favors the movant’s position. The decision to grant or deny a preliminary injunction rests in the sound discretion of the Court. Upon a failure to oppose matters advanced on a motion, the facts alleged in the moving papers may be deemed admitted by the Court.

The unopposed moving papers sufficiently demonstrated entitlement to the relief requested. The Nation would be irreparably harmed by the continuation of criminal activities and other nuisances at the premises. The equities balanced in the Nation’s favor. The Nation also was likely to succeed on the merits given its authority to bring these claims pursuant to NYS Indian Law.

Fixing the amount of an undertaking when granting a motion for a preliminary injunction is a matter within the sound discretion of the court, but the CPLR requires that the party seeking an injunction give an undertaking. In the Court’s discretion, the Nation was required to give an undertaking in the amount of two thousand five hundred dollars ($2,500.00).

The Nation also has sought an order, pursuant to NYS Indian Law, for a sheriff’s warrant to remove an intruder upon tribal lands. The Court had jurisdiction to entertain such an application pursuant to a section of the NYS Indian Law which provides that applications by Indians may be “prosecuted and enforced in any court of the state.” Another section of that law provides that no person may conduct a business upon tribal lands without permission of the Council.

Upon a complaint, the Court may issue notice requiring those a tribal nation considers to be intruding upon tribal lands to appear before the Court. Should the Court determine that persons complained of are intruders, a warrant commanding the sheriff to remove such persons will issue. The Nation was directed to personally serve the notice upon the owners of the Smoke Shop.

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