Opinion
Index No. 51342
09-08-2017
CAYUGA NATION, by and through it lawful governing body, the CAYUGA NATION COUNCIL, Plaintiff v. SAMUEL CAMPBELL, CHESTER ISAAC, JUSTIN BENNETT, KARL HILL, SAMUEL GEORGE, DANIEL HILL, TYLER SENECA, MARTIN LAY, WILLIAM JACOBS, WARREN JOHN, WANDA JOHN, DUSTIN PARKER, BRENDA BENNETT, PAMELA ISAAC, AND JOHN DOES 1-25, Defendants
Appearances: Attorney for Plaintiff: Barclay Damon, LLP Lee Alcott, Esq, of counsel David DeBurin, Esq, pro hac vice Attorney for Defendants: Samuel Campbell Chester Isaac Justin Bennet Karl Hill Samuel George Daniel Hill Tyler Seneca Martin Lay William Jacobs Brenda Bennett and Pamela Isaac Joseph J. Heath, Esq. Attorney for Defendants: Warren John Wanda John Joseph M. Callahan, Esq. MacKay, Caswell & Callahan, PC Attorney for Defendant: Dustin Parker Pro-Se and in default Attorney for Seneca County: Motion to Intervene Frank R. Fisher, Esq.
At a Special Term of the Court held in and for the County of Seneca at Waterloo, NY on August 29, 2017 DECISION Appearances: Attorney for Plaintiff: Barclay Damon, LLP
Lee Alcott, Esq, of counsel
David DeBurin, Esq, pro hac vice Attorney for Defendants:
Samuel Campbell
Chester Isaac
Justin Bennet
Karl Hill
Samuel George
Daniel Hill
Tyler Seneca
Martin Lay
William Jacobs
Brenda Bennett and
Pamela Isaac Joseph J. Heath, Esq. Attorney for Defendants:
Warren John
Wanda John Joseph M. Callahan, Esq.
MacKay, Caswell & Callahan, PC Attorney for Defendant:
Dustin Parker Pro-Se and in default Attorney for Seneca County:
Motion to Intervene Frank R. Fisher, Esq.
The plaintiff herein has commenced this action on behalf of the Cayuga Nation. The named defendants, as well as presumably the "John Does" are also all individual Cayuga Indians. The complaint alleges several causes of action regarding actions, past and ongoing, which occurred during the approximately thirteen year old leadership dispute between factions of the Nation. The plaintiff, is represented by its representative, Clint Halftown, and Tim Two Guns (the Nation's federally recognized representative and alternate federal representative respectively). The defendants are comprised a group of Nation members referred to as either the "Unity Council" or the "Council of Chiefs".
Most, if not all, of the individual parties were before this Court in 2014. Then as now, the dispute was fundamentally over control of Nation property. The properties which are currently in dispute include a convenience store and gas station commonly known as Lakeside Trading located at 2552 N.Y.S. Rte. 89, Seneca Falls, New York; a one story building located at 2540 N.Y.S. Rte. 89, Seneca Falls, New York referred to as the "Nation's offices"; a cannery facility located at 2557 N.Y.S. Rte. 89, Seneca Falls, New York; a "Security Trailer" property located at 3149 Garden Street Ext., SenecaFalls, New York and an ice cream stand with improvements known as the "Sugar Shack" located at 2553 N.Y.S. Rte. 89, Seneca Falls, New York.
The underlying question was not resolved in 2014. As was noted in the Court's decision at that time, the dispute could not be addressed because the seminal question of who had the right to lead the Nation, was one which the Court found it lacked jurisdiction to determine. (2014 NY Slip Opinion 31277(U), Seneca County Docket No. 48275)
The plaintiff argues leadership has now been resolved, as the Bureau of Indian Affairs (BIA) has made a determination. Specifically Michael S. Black, Acting Assistant Secretary of Indian Affairs, affirmed the determination of a Regional Director's decision which recognized Clint Halftown as the authorized representative for the Nation. See Exh. 2 to the complaint.
In its complaint, the plaintiff requests various forms of relief, including declarations that the defendants' entry into the foregoing properties constitutes a trespass, the defendants' dominion over the personal property of the Nation constitutes a conversion, and the defendants' disruption of Nation commercial activities constitutes tortious interference with prospective business relations. The Nation further seek orders directing that the defendants and any of their agents be ordered to vacate the properties immediately, requiring the defendants and their agents to surrender all dominion over any Nation personal property, preliminarily and permanently enjoining the defendants and their agents from entering any of the Nation owned commercial property or facilities, including the aforementioned properties, and a declaration for them to enter the same would be a trespass. The Nation lastly seeks an order preliminarily and permanently enjoining the defendants and their agents from possessing or exercising dominion over any personal property on any of the aforementioned properties, as well as money damages, attorney fees and costs.
The defendants, through Attorney Heath, argue that this application again asks this Court to wade into internal leadership disputes within the Cayuga Nation. While this Court does not dispute the defendants' assertion that the Court lacks subject matter jurisdiction over internal Indian Nation government disputes [People v Anderson, 137 AD 2d 259 (4th Dept., 1988)], this Court agrees with the plaintiff's submission that the issue of leadership need not be determined by this Court. The plaintiff rather, is simply asking the Court to accept and act upon the determination made by the BIA that Clint Halftown is the recognized representative of the Nation. The defendants' argument to the contrary was rejected in Cayuga v Tanner, 824 F3rd 321 (2nd Circuit, 2016) as it applies to the federal courts. The reasoning in Tanner is sound and this Court finds such rationale equally applicable to the state court. See also, 42 CJS Indians §40, Indian Rights of Action and Standing in Indian Matters; Judicial Restraint. There must be an end to litigation and the BIA is much better versed in guiding the Nation to reach a determination as to who should be recognized as the federal representative for Nation activities. As noted, this dispute has been ongoing since 2004, and the Nation members, unable to resolve the dispute amongst themselves, appropriately looked to the BIA for assistance.
The defendants also argue that there were numerous errors in the proceedings before the BIA. True or not, such are not before this Court, and would be appropriately addressed in the appeal Mr. Heath indicates will be taken to a federal court.
Based upon the foregoing, this Court recognizes plaintiff as having authority to bring the action on behalf of Cayuga Nation, and determines it has jurisdiction to hear this matter.
The only issue before the Court at this time, however, is whether the defendants' request for a preliminary injunction should be granted. Pursuant to CPLR 6301, a preliminary injunction may be granted in any action where it appears that the defendants threaten, or are doing acts in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual. Clearly such is the case.
The defendants argue the plaintiff is not entitled to a preliminary injunction because Mr. Halftown and others do not have clean hands. Here again, this argument relates to proceedings related to the decision of the BIA which are rightfully part of the appeal the defendants indicate they plan on filing in federal court
It appears that if egregious errors did in fact occur in the BIA process, such would be supportive of an argument by the defendants in federal court for a stay of the BIA decision while the federal appeal is pending.
The defendants also argue that because of their positions in the Nation, some of the defendants are protected by sovereign immunity. While some may arguably have been acting in their official capacities during the time period in question, and may thus have then been protected by sovereign immunity (Pistor v Garcia, 791 F. 3d 1104, 1110(9thCir., 2015)), they clearly are not continuing their occupancy of the subject premises in such capacity following the decision of the BIA. The defendants have failed to prove they are immune from this suit as far as their present and future occupancy of the Nation premises is concerned, and it is too early to determine which defendants, if any, are immune from suit regarding their actions prior to the August 2, 2017, BIA decision.
The Court finds that there is no issue of fact that would require a hearing, CPLR 6312 ( c). Predicated upon the parties' papers and oral argument, a sufficient showing has been made that the defendants are impermissibly exercising dominion and control over Nation properties contrary to plaintiff's directions, and that monies derived from the commercial operations therein rightfully belong to the plaintiff, and such monies are currently being diverted by the named defendants. The plaintiff has made the requisite showing that its rights are being violated and. that a subsequent judgment would be ineffectual if the monies and occupancy continue to be diverted by the defendants. The plaintiff has made a showing of a likelihood of success on the merits, that irreparable injury will result if an injunction is not granted, and a balancing of the equities supports the issuance of a preliminary injunction.
Accordingly, the defendants are directed to vacate the foregoing properties, and to cease and desist from exercising dominion and control over them and the improvements located on them, to wit, 2552 N.Y.S. Rte. 89, Seneca Falls, New York; 2540 N.Y.S. Rte. 89, Seneca Falls, New York; 2557 N.Y.S. Rte. 89, Seneca Falls, New York; 3149 Garden Street Extension, Seneca Falls, New York; and 2553 N.Y.S. Route 89, Seneca Falls, New York. The Court declines however, to grant the Nation's request that the defendants, who are all members of the Cayuga Nation, may not enter the aforementioned premises for lawful purposes, such as buying items at the Lakeside Trading parcel or the Sugar Shack.
In addition to the foregoing, the Court grants the application that defendants and their agents, servants, and employees are to surrender all dominion and control over Cayuga Nation personal property, including but not limited, to the keys taken from the Nation's security office as well as any personal property in said offices and the defendants are directed to cease and desist taking any action to disrupt the commercial activities of the Nation or any Nation affiliated entity. The foregoing injunction, however, is stayed until September 26, 2017, to allow the defendants herein to make an immediate application to the federal court for a stay of the BIA decision if that is their choice. If the stay is granted, the defendants may make application for an immediate review of this decision and the accompanying order. The Court further sets a $0.00 undertaking pursuant to CPLR 6313(b), there being no showing of damage to the defendants herein, as the plaintiff is acting pursuant to its federal recognition by the BIA.
This Court further determines that Seneca County may intervene in this matter pursuant to CPLR 1013, there being no opposition, and that the defendant Dustin Parker is in default on this motion.
This constitutes the decision of the Court. Counsel for the plaintiff shall submit an order accordingly which shall be done no later than September 15, 2017. Dated: September 8, 2017
/s/_________
Hon. Dennis F. Bender
Acting Supreme Court Justice