In the Matter of Tonawanda Seneca Nation, Appellant,v.Hon. Robert C. Noonan,, et al., Respondents.

Brief

N.Y.June 1, 2016

To be Argued by: MARGARET A. MURPHY, ESQ. (Time Requested: 15 Minutes) APL-2015-00084 Appellate Division Docket No. OP-13-01937 Court of Appeals of the State of New York In the Matter of the Application of the TONAWANDA SENECA NATION, Petitioner-Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules – against – ROBERT C. NOONAN, a County Court Judge assigned to the Surrogate’s Court for the County of Genesee, COREEN N. THOMPSON, as a beneficiary and Administratrix C.T.A. for the Estate of David C. Peters, JOAN F. PETERS, as a beneficiary of the Estate of David C. Peters, and THOMAS W. PETERS, as a beneficiary of the Estate of David C. Peters, Respondents-Respondents. BRIEF FOR PETITIONER-APPELLANT Of Counsel: Margaret A. Murphy, Esq. MURPHY MEYERS LLP Attorneys for Petitioner-Appellant 6506 East Quaker Street, Suite 200 Orchard Park, New York 14217 Tel.: (716) 662-4186 Fax: (716) 662-4768 Dated: June 12, 2015 i STATUS OF RELATED CASES Appellant Tonawanda Seneca Nation (the “Nation”) is not a party to any other related case. The Nation is, however, aware of two related cases pending in other courts. On September 19, 2011, the Genesee County Surrogate’s Court admitted into probate the Last Will and Testament of David C. Peters (the “Will”). (R. 168 ¶52). Respondent Robert C. Noonan, the duly elected Genesee County Court Judge, has been assigned to act as the Surrogate in that matter. (R. 159 ¶2, 161 ¶ 10). Respondent Coreen N. Thompson is the appointed Administratrix C.T.A. (R. 160 ¶3). Respondents Joan A. Peters and Thomas W. Peters, who are enrolled Nation members, have been named as beneficiaries in the Will, along with Respondent Thompson. (R. 160 ¶¶ 3-5). Upon information and belief, Respondent Noonan has issued orders of disgorgement against Respondents Joan Peters and Thomas Peters stripping them of any and all bequests, devised properties and gifts. These orders were issued pursuant to the Will’s in terrorem provision and invoked because these respondents challenged Respondent Noonan’s authority to dispose of real and business properties located on the Nation’s territory. Upon information and belief, Respondent Joan Peters has an appeal pending before the Appellate Division for the Fourth Judicial Department. ii Previously, Respondent Joan Peters had filed a complaint in the United States District Court for the Western District of New York challenging state court jurisdiction over property located within the Nation’s territory. (R. 169 ¶56). Peters v. Noonan, 1:12-cv-00234 RJA, Docket Entry No. 1 (U.S. Dist. Ct. W.D.N.Y. Mar. 22, 2012). Upon information and belief, no final disposition has been issued in that matter. Shortly after the federal action was commenced, Plaintiff Joan Peters moved for a temporary restraining order to enjoin Defendant Noonan. The motion was denied. See Peters v. Noonan, 871 F. Supp. 2d 218 (W.D.N.Y. 2012). Without dismissing the complaint, United States District Court Judge Richard J. Arcara found insufficient proof to show a “case or controversy” giving plaintiff standing to file a federal lawsuit. Id. at 225. On this record, plaintiff Joan Peters moves for a temporary restraining order against Judge Noonan on an assumption that the plaintiff's claims of the Nation's exclusive jurisdiction to adjudicate her claims of superior right to the property of her deceased son located on reservation territory will be disregarded by Judge Noonan while her claims of right to the property will be adopted and enforced by the Nation. Since the Nation has so far not acted to rule on the plaintiff's claims, and since the Nation has so far declined to direct that its members plaintiff Joan Peters, Coreen Thompson, and Thomas W. Peters, co-executor of the will, cooperate to seek a delay of the Genesee County Surrogate's Court probate proceedings to allow the Nation time to rule on the plaintiff's claims, the Court finds that the plaintiff's assumption of vindication under Nation law to be too speculative . . . . The controversy before the Court suffers from indeterminacy. iii Id. at 225-26. After this decision was issued, Respondent Noonan issued the above-mentioned orders of disgorgement against Respondents Joan Peters and Thomas Peters. iv TABLE OF CONTENTS Table of Authorities ................................................................................................... v Jurisdictional Statement ............................................................................................. 1 Question Presented ..................................................................................................... 2 Statement of the Case ................................................................................................. 3 Summary of the Facts ................................................................................................ 5 Argument.................................................................................................................... 8 I THE APPELLATE DIVISION ERRED BY RULING IT LACKED SUBJECT MATTER JURISDICTION TO HEAR AN ARTICLE 78 PETITION BROUGHTAGAINST A COUNTY COURT JUDGE WHO, BY OPERATION OF LAW, ACTS AS THE COUNTY SURROGATE. ................................... 8 II THE APPELLATE DIVISION’S DISMISSAL OF A JUSTICIABLE ARTICLE 78 PETITION DOES NOT CONSTITUTE HARMLESS ERROR. ......................................................... 14 A. State Courts Have No Subject Matter Jurisdiction Over Civil Disputes Affecting the Nation’s Internal Affairs and Governance Over Its Territory and Its Citizens ................................................................................................ 15 B. The Nation Has No Other Adequate Remedy at Law ......................... 20 C. Respondent Noonan’s Subsequent Orders Have Not Rendered the Nation’s Amended Petition Moot ................................. 25 Conclusion ............................................................................................................... 27 v TABLE OF AUTHORITIES Case Authority Page B.T. Productions, Inc. v. Barr 44 N.Y.2d 226 (1978) …………………………………………… 11, 13 Bennett v. Fink Construction Co., 47 Misc.2d 283 (Sup. Ct., Erie Co. 1965) ……………………… 17, 18, 23 Bowen v. Doyle, 880 F. Supp. 99 (W.D.N.Y. 1995)………………………………. 16, 18, 19, 22 Collins, Matter of v Lamont, 273 A.D.2d 528 (3d Dep’t. 2000) ……………………………….. 12 County of Onondaga, Matter of v. Brunetti, 108 A.D.3d 1138 (4th Dep’t 2013) ………………………….…… 12 Juracka v. Severson, 115 A.D.2d 102 (3d Dep’t 1985)………….. 8, 9 Patterson v. Council of Seneca Nation, 245 N.Y. 433 (1927) …………………………………………….. 17, 18 Pavlovic v. Czajka, 27 A.D.3d 983(3d Dep’t. 2006) ……………. 8, 9 Ransom v. St. Regis Mohawk Educ. and Community Fund, Inc., 86 N.Y.2d 553 (1995) …………………………………………… 16, 17 Seneca v. Seneca, 293 A.D.2d 56 (4th Dep’t. 2002) ………………………………… 16 Valvo v. Seneca Nation of Indians, 170 Misc.2d 512 (Sup. Ct., Erie Co. 1996)………………............. 16 Vargason, Matter of v. Brunetti, 241 A.D.2d 941(4th Dep’t. 1997) ……………………………… 12 vi Statutory Authority 25 U.S.C. § 233…………………………………………………... 3, 5, 16 CPL § 10.10 (2) ………………………………………………… 13 CPL § 10.10(3)(f),(g)…………………………………………… 13 CPL § 10.20……………………………………………………… 12 CPLR § 506(b)(1)………………………………………………... 8, 11, 12, 13, 14 CPLR § 5602(a)(2)……………………………………………….. 1 Indian Law § 5…………………………………………………… 16 Judiciary Law § 184(2)…………………………………………... 11 N.Y. Const., art. VI, §012………………………………………... 10 N.Y. Const., art. VI, § 26 (c) …………………………………….. 10 1 JURISDICTIONAL STATEMENT On or about October 24, 2013, Appellant Tonawanda Seneca Nation (the “Nation”), a federally-recognized sovereign Indian nation, commenced this Article 78 proceeding in the Supreme Court of the State of New York, Appellate Division for the Fourth Judicial Department (“Appellate Division”) against Respondent Robert C. Noonan (“Respondent Noonan”), as the County Court Judge and Acting Surrogate for Genesee County. (R. 39 ¶2). In a Memorandum and Order, entered on November 14, 2014, the Appellate Division dismissed the Nation’s amended petition on the ground it lacked subject matter jurisdiction over a county court judge whose authority is challenged while serving in the role as the acting surrogate. (R. 6-7). Pursuant to CPLR § 5602(a)(2), this Court has jurisdiction to grant leave to appeal “in a proceeding instituted by or against . . . a court or tribunal, from an order of the appellate division which does not finally determine such proceeding.” On or about January 12, 2015, the Nation sought permission from this Court, pursuant to CPLR § 5602(a)(2), to review the Appellate Division’s Memorandum and Order. On April 2, 2015, this Court granted the Nation’s motion for leave to appeal. (R. 4-5). 2 QUESTION PRESENTED This Article 78 proceeding, commenced more than one year and a half ago, raises important legal issues of federal supremacy and comity concerning the limits of jurisdiction of New York State courts over civil disputes implicating the right of self-government of a sovereign Indian nation. Although lack of subject matter jurisdiction may be raised at any time, Respondents Noonan and Thompson had, on two separate occasions, unsuccessfully argued the Appellate Division lacked subject matter jurisdiction. (R. 76 ¶2 (b)-(c), 153, 556 ¶23, 581 ¶¶15-16, 677). Despite its prior rulings, the Appellate Division avoided ruling upon the legal merits of the Nation’s amended petition by concluding it lacked original jurisdiction to hear an Article 78 petition against a county court judge who, by operation of law, is designated the acting surrogate in a county where there is no separately elected surrogate court judge. (R. 6-7). The Nation presents this question for review: Did the Appellate Division have original jurisdiction to determine the legal merits of an Article 78 petition filed against a county court judge who, by operation of law, is designated as the county surrogate judge? 3 STATEMENT OF THE CASE In its amended petition, the Nation challenges the “subject matter jurisdiction” of any state court over matters involving the title, use and possession of lands within its sovereign territory. (R. 178-79 ¶¶ 98 -103). Generally, the Nation argues that its inherent sovereign authority under federal law and the provisions of 25 U.S.C. § 233 preempt state courts from hearing civil disputes implicating the Nation’s internal affairs and governance over its territory and its citizens. (R. 174 ¶ 75, 179 ¶101). Specifically, the Nation seeks to protect its sovereign powers by prohibiting Respondent Noonan, the Genesee County Court Judge serving as the Acting Surrogate for Genesee County, from exercising jurisdiction over the provisions of the Last Will and Testament of David C. Peters (the “Will”), which purportedly direct how federally-protected lands1 within the Nation’s sovereign territory would be used and occupied. (R. 161 ¶ 14, 166-68 ¶¶ 41-50). Respondent Noonan has continued to issue orders under the mistaken view that federal and state law authorizes him to supplant the Nation’s laws and to usurp the Nation’s authority to resolve disputes involving the use and possession of the Nation’s lands, including the right to operate businesses on the Nation’s territory. 1 This is a case being closely monitored by the Office of the Solicitor for the United States Department of the Interior. (R. 57). 4 Pursuant to its sovereign authority, the Nation commenced its own dispute resolution process prior to the commencement of any proceedings in the Genesee County Surrogate’s Court (R. 209 ¶ 8, 212-13, 273¶ 8, 277 ¶¶14-15, 279-80 ¶¶ 7- 8). Although federal law preempts state court authority, Judge Noonan purports to be exercising “concurrent” jurisdiction (R. 476) and, on that basis, has issued a series of decisions and orders undermining the Nation’s sovereign right to enforce its own laws and its ability to maintain authority over its territory and its people. (R. 174 ¶¶ 72-73, 175 ¶ 82, 176 ¶¶ 84-87, 177-78 ¶¶ 93-94). Without legal or factual basis, his rulings have also questioned the “extent of the Nation’s sovereignty” and the process by which the Nation makes and enforces its laws. (R. 293-94, 299, 301). Judge Noonan has even refused to recognize the Nation as the undisputed authority as to its own customs and laws (R. 299-300, 338-39) by insisting the Nation’s officials waive their sovereign immunity and be subject to cross-examination (R. 338-39) before he will deem the Nation to have “effectively” adopted laws and customs to supplant the laws of New York. (R. 294). The Nation brought this Article 78 petition to enjoin this unlawful interference with its internal governance and to protect its sovereign right to govern the disposition of property within Nation territory. 5 SUMMARY OF THE FACTS David C. Peters (the “Decedent”) was a member of the Nation’s Hawk Clan. (R. 165 ¶ 33). In his Will, he bequeathed to various beneficiaries real and personal property located both on and off the Nation’s territory. (R. 166 ¶40). The Nation takes no issue with any portion of the Will dealing with real or personal property located off the Nation’s territory. (Id.¶41). In his Will, Decedent directed his estate be administered and controlled “to every extent possible, as authorized pursuant to 25 U.S.C. § 233,” by the laws of New York “in effect at the time of [his] demise which, but for [his] status as an enrolled member of the Seneca Nation of Indians,2 and a Native American, would control any part of the administration of [his] estate and the distribution of [his] property.” (R. 182-83, emphasis added). In various provisions of the Will, Decedent acknowledged that the disposition of property within the Nation’s territory may be subject to the Nation’s exclusive control. (R. 166 ¶43, 183-84). For example, as to “any property, rights, interest or heirship (including but not limited to land rights on sovereign lands and the intangible right to operate retail or wholesale sales businesses) of any nature whatsoever, which rights or 2 Contrary to the provision of the Will, Decedent was not an enrolled member of the Seneca Nation of Indians. His clan and enrollment status is traced to his mother, Respondent Joan F. Peters. (R. 163 ¶ 21). Respondent Joan Peters is not an enrolled member of the Seneca Nation of Indians, but a citizen of the Tonawanda Seneca Nation and a member of its Hawk Clan. (R. 165 ¶ 35). 6 entitlements are controlled or governed solely by reference to Native American law provisions including the Indian Tribal Council or Chiefs Council,” he expressed his “wishes and desires” in the Fourth, Fifth and Sixth Articles of his Will. (R. 166-67¶ 45, 184). Decedent’s wishes were directed not to a state court judge, but to “the Indian Tribal Council or Chiefs Council” controlling and governing “the rights or entitlements” to such property. (R. 184). The Nation, along with Respondents Joan Peters and Thomas Peters, made appearances before Respondent Noonan objecting to state court jurisdiction over those provisions of the Will disposing of property, including the “intangible right to operate … businesses,” on the Nation’s territory. (R. 169 ¶ 56, 172 ¶ 66). In a Decision issued February 18, 2014, Respondent Noonan appeared to acknowledge that “the Council of Chiefs . . . remains the ultimate authority over the use and possession of lands.” (R. 476). However, in a subsequent Decision and Order issued on March 10, 2014, Respondent Noonan declared he would “decline” to exercise jurisdiction over “realty,” but would accept jurisdiction “over personality constituting putative assets” located on the Nation’s territory, “including the business of the Arrowhawk Smoke and Gas Shop….” (R. 541). On April 10, 2014, Respondent Noonan signed two new orders directing the New York State Police and/or the Genesee County Sheriff to enter the Nation’s territory to assist Respondent Thompson, as the Estate’s Administratrix, in the 7 enforcement of those provisions of the Will relating to property located on the Nation’s territory. (R. 569, 600). Respondent Noonan issued these orders at the request of Respondent Thompson, who had previously filed various petitions opposed by the Nation. (R. 171-172 ¶¶63-65). More than two years after Decedent’s death, Respondent Noonan directed state law enforcement officials to assist Respondent Thompson in entering a business on the Nation’s territory and to place “the Business and Business property” there “under the control of the Estate and the Court.” (R. 569). Prior to issuance of these orders, the Nation made a limited appearance (R. 268) before Respondent Noonan advising him the business at issue had “operated totally outside the laws of the Nation in defiance of them.” (R. 294). Even though Respondent Noonan recognized the Nation has “ultimate authority over use and possession of lands” (R. 476) and may “permit, suffer, or evict the business” (R. 477), he “determined that the business of the Arrowhawk Smoke and Gas Shop was an asset of David Peters’ estate.” (R. 477). Respondent Noonan not only exercised jurisdiction affecting the Nation’s internal affairs, but also authorized the Estate to take ownership, use and possession of a business on the Nation’s territory in defiance of the Nation’s sovereignty and its laws. 8 ARGUMENT I THE APPELLATE DIVISION ERRED BY RULING IT LACKED SUBJECT MATTER JURISDICTION TO HEAR AN ARTICLE 78 PETITION BROUGHT AGAINST A COUNTY COURT JUDGE WHO, BY OPERATION OF LAW, ACTS AS THE COUNTY SURROGATE. The Appellate Division ruled that it lacked subject matter jurisdiction over the Nation’s Article 78 petition because Respondent Noonan handled the Peters probate case in his capacity as judge of the Surrogate Court, and CPLR 506 §0(b)(1) requires such suits to be brought in Supreme Court. The Appellate Division’s ruling is wrong as a matter of fact and law. In fact, the Appellate Division’s holding would lead to the extraordinary result that an Article 78 proceeding brought against any judge serving as a surrogate must be commenced in Supreme Court, and not in the Appellate Division. (R. 7). There is no support for that broad conclusion in either the text of CPLR 506 (b)(1) or judicial decisions. In support of its holding, the Appellate Division cites only the three-line decision in Pavlovic v. Czajka, 27 A.D.3d 983, 983 (3d Dep’t. 2006) and the one- line decision in Juracka v. Severson, 115 A.D.2d 102, 102 (3d Dep’t 1985). Neither case supports the holding. Because it did not address whether the surrogate against whom relief was sought was also a county court judge, Juracka is inapposite. 9 Similarly, the three-line ruling in Pavlovic fails to address whether the surrogate whose authority was being challenged was also a county court judge in a county with no separately elected surrogate. Nothing in the decision suggests that the Third Judicial Department of the Appellate Division considered that question, which lies at the heart of this appeal. Consequently, Pavlovic cannot serve as precedent for a so-called “well settled” rule, alluded to by the Appellate Division in its Memorandum and Decision, that “[a] CPLR article 78 proceeding against a Judge of the Surrogate’s should be commenced in Supreme Court and is not properly commenced in” the Appellate Division. (R. 7, emphasis added). In Genesee County, there is no separately elected surrogate.3 (R. 140, 160 ¶9,). This is an undisputed fact. Respondent Noonan serves not only as the Genesee County Court Judge, but also as an Acting Supreme Court Justice and the Acting Surrogate Court Judge for Genesee County. (R. 140). When he presides as the Surrogate, official court transcripts list him as the “Acting Surrogate Court Judge.” (R. 311, 341, 490). 3 In its Memorandum and Order, entered November 14, 2014, the Appellate Division appeared to question whether Respondent Noonan was elected to the Genesee County Court, by observing “[e]ven if we assume, arguendo, that respondent was elected as a County Court Judge . . . .” (R. 7). Respondent Noonan’s status as a County Court Judge is not open to question. Respondent Noonan admitted the allegations contained in paragraph 2 of the amended petition: “Respondent Robert C. Noonan (“Noonan”) is the duly elected County Court Judge for the County of Genesee.” (159 ¶2, 479 ¶ First). 10 In his brief to the Appellate Division, Respondent Noonan asked the Fourth Department to take judicial notice of the 2006 absentee ballot prepared by the Genesee County Board of Election listing him as the candidate for “County and Surrogate Court Judge.” (Brief for Respondent Noonan [“Noonan Br.”], dated September 22, 2015, at p. 15).4 Respondent Noonan contended this ballot shows that he is not merely “acting” as the Surrogate, but is the elected Surrogate. (Id.). The source of Respondent Noonan’s judicial authority, however, cannot be determined by how he has been designated on an election ballot or on court transcripts. Instead, this Court should look to his constitutional or statutory authority to act as the Surrogate. The Appellate Division erred by ignoring the constitutional and statutory authority of a county court judge in an upstate county where there is no separately elected surrogate. The Constitution of the State of New York requires “at least one judge” in each county to serve as the county surrogate, but it does not direct that judge to be separately elected as the surrogate. Compare N.Y. Const., art. VI, §012 with N.Y. Const., art. VI, § 26 (c). Pursuant to section 26, paragraph c of the Constitution, a judge of the county court may be assigned “to the surrogate’s court in any county outside of the city of New York . . . .” 4 The Brief for Respondent Noonan, dated September 22, 2014, was previously filed with this Court pursuant to Rule 500.22(c), when the Nation filed its motion for leave to appeal. 11 Consistent with these constitutional provisions, Judiciary Law § 184(2) provides that, in a county where there is no separately elected surrogate, the county court judge acts as the surrogate. Even though the Appellate Division found Respondent Noonan to be “the duly elected Surrogate for Genesee County,” it failed to recognize a person cannot be elected to two positions unless authorized by the Constitution or by statute. Because the Legislature has not created or funded a separate position of Surrogate in Genesee County, Respondent Noonan must be elected to the County Court, before he is eligible to serve as the Surrogate of Genesee County pursuant Judiciary Law § 184(2). His constitutional and statutory power to sit as the Surrogate, therefore, is derived from his position as a County Court Judge. The Legislature intended the Appellate Division to have original jurisdiction to hear an Article 78 proceeding against a county court judge who, by operation of law, acts as the county surrogate. B.T. Productions, Inc. v. Barr, 44 N.Y.2d 226 (1978). CPLR § 506(b)(1)( mandating a proceeding against “a judge of a county court . . . shall be commenced in the appellate division.”). McKinney’s Practice Commentaries set forth the legislative intent behind CPLR §0506(b)(1): Subdivision (b)(1) designates a unique venue for Article 78 proceedings against Supreme Court Justices or County Court Judges, as in cases of mandamus or prohibition (CPLR 7803(1), (2)). Such proceedings must be brought in the Appellate Division. This provision 12 avoids putting judges of similar rank in the awkward position of passing upon the acts of their co-equals. The rule has been held to be a matter of subject matter jurisdiction. Thus, because Respondent Noonan is a County Court Judge, any proceeding brought against him must be commenced in the Appellate Division. In its Memorandum and Decision, entered on November 14, 2014, the Appellate Division cited several cases in which it exercised original jurisdiction in the Article 78 proceedings involving elected county court judges and/or an appointed court of claims judge serving as an acting supreme and county court judge pursuant to CPLR §0506 (b)(1). (R. 7) (citing of County of Onondaga v., 108 AD3d 1138 (4th Dep’t. 2013); Vargason v. Brunetti, 241 AD2d 941, (4th Dep’t 1977); Collins v Lamont, 273 AD2d 528 (3d Dep’t. 2000). These cases recognized the original jurisdiction given to the Appellate Division to hear matters involving a county or supreme court judge. In Barr, this Court found the Appellate Division had original jurisdiction in an Article 78 proceeding brought against a county court judge who issued a search warrant while serving as a local criminal court judge. 44 N.Y.2d at 234. Pursuant to CPL § 10.20, a county court judge may sit as a local criminal court judge, but only for the limited purpose of dealing with preliminary matters in criminal proceedings, including search warrant application. Id. Although the judge was acting as a local criminal court judge, the Court found: 13 his power to sit as a local criminal court is derived from his position as a County Court Judge and is thus a part of his authority as a County Court Judge. Hence, this proceeding was properly commenced in the Appellate Division. Id. This Court’s holding in Barr applies to this case since Respondent Noonan’s authority derives from his position as the County Court Judge in a county having no separately elected Surrogate. The Appellate Division unsuccessfully tried to distinguish this Court’s holding in Barr from the case-at-bar. In B.T. Prods., the petitioner challenged the actions of a County Court Judge in issuing a search warrant while the Judge was acting as a local criminal court. Pursuant to CPL 10.10 (3)(g), a “[l]ocal criminal court” is defined as “[a] county judge sitting as a local criminal court.” As a result, the Judge’s power to act as a local criminal court” was “a part of his authority as a County Court Judge” (B.T. Prods. v Barr, 44 NY2d at 234). Therefore, the proceeding in that case properly commenced in the Appellate Division (see CPLR 506[b]][1]; 7804[b]). (R. 7). Under the Criminal Procedure Law § 10.10 (2), supreme and county courts are considered “superior” courts, not local criminal courts. However, a supreme court justice and a county court judge have the authority to act as local criminal court judges in preliminary criminal matters, such as issuing criminal warrants. CPL § 10.10 (3)(f),(g). In other words, the fact that a superior court judge may act as a local criminal court judge does not change the fact that he/she is a superior court judge against whom an Article 78 petition may be brought only in the Appellate Division pursuant to CPLR § 506(b)(1). 14 Similarly, although Respondent Noonan may be serving as the Surrogate, he remains a County Court judge whose actions must be reviewed by the Appellate Division in an Article 78 proceeding. Therefore, consistent with this Court’s holding in Barr, the Appellate Division had original, subject matter jurisdiction to hear the Article 78 petition brought against Respondent Noonan and others pursuant to CPLR § 506 (b)(1). For this reason, the Appellate Division’s Memorandum and Order should be reversed and remanded. II THE APPELLATE DIVISION’S DISMISSAL OF A JUSTICIABLE ARTICLE 78 PETITION DOES NOT CONSTITUTE HARMLESS ERROR The Appellate Division twice rejected the argument it lacked original jurisdiction to hear this case. Only after the Nation had invested a considerable amount of time and money to pursue its Article 78 proceeding, it dismissed the Nation’s amended petition without reaching the merits. Respondents may argue the Appellate Division’s ruling constitutes harmless error. The Nation’s claims, however, have merit, and deserve to be heard expeditiously by the appropriate court. Denial of any remedy in this case, which directly implicates the Nation’s right to govern itself, is not harmless. 15 A. State Courts Have No Subject Matter Jurisdiction Over Civil Disputes Affecting the Nation’s Internal Affairs and Governance Over Its Territory and Its Citizens Like other sovereign governments, the Nation has the power to make and enforce laws for the health, safety and general welfare of its citizens. This fundamental principle—that Indian tribes retain the right to self- government—has been repeatedly reaffirmed by the Supreme Court. It is now well-settled that “[t]he sovereignty retained by tribes includes ‘the power of regulating their internal and social relations.’ ” (citations omitted), and that this authority includes the “power to make their own substantive law in internal matters and to enforce that law in their own forums.” Bowen v. Doyle, 880 F. Supp. 99, 112-13 (W.D.N.Y. 1995). No federal or state law allows Respondent Noonan to usurp the Nation’s sovereignty by making decisions intruding on the Nation’s sovereign prerogative to govern its internal and political affairs. Id. at 137. Fundamental to the Nation’s sovereignty is its exclusive authority over the use and possession of its territorial lands. In decisions issued on February 18, 2014 and March 19, 2014, Judge Noonan purportedly declined to exercise jurisdiction over the Nation’s “land or the improvements affixed thereon without the consent of the Nation.” (R. 477, 478, 541). These orders apparently did not mean what they said, because a short time later, on April 10, 2014, Respondent Noonan issued orders permitting the Estate to evict a citizen of the Nation from his home on Nation territory, to change locks on buildings, and to seize control of businesses operating on the Nation’s Territory. 16 (R. 569, 600). These orders also directed the New York State Police and/or the Genesee County Sheriff to “provide any and all assistance” to obtain “control and/or possession of all personal property “located anywhere on the Tonawanda Seneca Nation,” even giving permission to enter, without notice, into buildings under the Nation’s exclusive control. (R. 600). State courts’ lack of subject matter jurisdiction over sovereign Indian lands was recognized in Valvo v. Seneca Nation of Indians, 170 Misc.2d 512 (Sup. Ct., Erie Co. 1996). After reviewing the provisions of 25 U.S.C. § 233 and Indian Law § 5, Justice Rose Sconiers, a justice who now sits on the Appellate Division, held these statutes do not subject an Indian nation to state court jurisdiction where the underlying dispute originally involved private claims asserted by individuals, but later entangled an Indian nation in a land dispute with one of its citizens. Id. at 515. Justice Sconiers ruled state courts have no jurisdiction to resolve such disputes. Id. at 518. In Ransom v. St. Regis Mohawk Educ. and Community Fund, Inc., 86 N.Y.2d 553, 558 n. 2 (1995), this Court limited the jurisdictional reach of 25 U.S.C. § 233, holding that it gives New York courts jurisdiction over “private disputes between individual Indians, not disputes between an Indian and a sovereign tribe.” 86 N.Y.2d at 558 n. 2. See also Seneca v. Seneca, 293 A.D.2d 56 (4th Dept. 2002) citing Bowen, 880 F. Supp. at 122-23 (“New York courts have 17 no subject matter jurisdiction over the internal affairs of Indian tribes”). The Court further noted that the provisions of the New York Indian Law were enacted to assist Indian nations in the administration of their governmental affairs, not to “make applicable to Indians either the common law or statute law of the State” or to “abrogate Indian customs or usages.” Id. New York courts have generally recognized an Indian nation may not be made “subservient to the orders and directions” of a state court judge. Bennett v. Fink Construction Co., 47 Misc.2d 283, 285 (Sup. Ct., Erie Co. 1965)5; Ransom, 86 N.Y.2d at 558 fn.2; Patterson v. Council of Seneca Nation, 245 N.Y. 433, 445 5 In 1965, the Honorable Matthew J. Jasen, serving as an Erie County Supreme Court justice and prior to serving on this Court, held a sovereign Indian nation’s laws and customs may not be overruled or otherwise disturbed by a state court exercising jurisdiction pursuant to 25 U.S.C. § 233. See Bennett v. Fink Construction Co., 47 Misc.2d 283, 285 (Sup. Ct., Erie Co. 1965). In Bennett, the plaintiff claimed to own and possess a tract of land on the Seneca Nation of Indians’ Cattaraugus Territory, as an allottee through inheritance from her father. Id. at 284. The Seneca Nation Surrogate’s Court had already ruled plaintiff had no interest or title, under its laws and customs, to this parcel of land. Id. at 285. Justice Jasen held it was for the Seneca Nation, in its capacity as a sovereign Indian nation, to determine, in accordance with its laws, usages and customs, who may own or possess land within its territory. Id. In Justice Jasen’s view, New York courts were required by federal law to recognize and give effect to an Indian nation’s laws and customs and were not authorized to alienate lands within any Indian nation’s territory. Id., citing 25 U.S.C. § 233. It is well settled that the right of inheritance from a member of an Indian Nation, recognized by the Government of the United States, is controlled by the laws, usages and customs of the Indian Nation concerned, and not by the law of any State. 47 Misc.2d at 284. Based on the doctrine of comity, Justice Jasen held the Seneca Nation, as a federally-recognized sovereign Indian nation possessing the power of self-government, could not be “subservient to the orders and directions of the courts of New York State.” Id. at 285. After accepting the documentary proof submitted by the Seneca Nation, Justice Jasen denied the plaintiff’s application for an injunction and dismissed her complaint. Id. at 286. 18 (1927); Bowen, 880 F. Supp. at 130 (“whether the State Court has authority to enter orders directing how an Indian tribe may govern itself – is a federal question, and New York has no interest in the subject matter of the underlying controversy”). The Nation has the exclusive authority to determine who may operate a business on its territory. Respondent Noonan, however, has issued rulings intruding upon “the Nation’s treaty-protected rights to self-government and exclusive authority over its internal affairs.”6 Bowen, 880 F. Supp. at 136. Because of Respondent Noonan’s rulings, Respondent Thompson has repeatedly refused “to participate in tribal proceedings” except under conditions she and her attorney wish to dictate to the Nation. (R. 273 ¶ 8, 294). This fact alone demonstrates Respondent Noonan has impaired the Nation’s ability to maintain authority. 6 For example, Respondent Noonan refused to accept the Nation’s affidavits as evidentiary proof. (R. 338) (ruling “the affidavits previously submitted herein by the tribal officials will be inadmissible at trial”). Instead he gave the Nation a Hobson’s choice: waive sovereign immunity and subject the Nation’s governmental officials to cross-examination at a judicial hearing, or assert sovereign immunity and stand on the sidelines while he decides whether the Nation has “effectively” adopted laws and customs to supplant the laws of New York. (Id. at 338-39). Either choice would irreparably harm the Nation and impermissibly infringe upon the Nation’s right to self-government and to make and enforce its laws. See Bowen, 880 F. Supp. at 122. More importantly, Respondent Noonan’s ruling made the Nation “subservient to the orders and directions of the courts of New York State.” Bennett, 47 Misc.2d at 285. Congress has given state courts no jurisdiction to “supplant” the Nation’s customs and laws. 25 U.S.C. § 233. Section 233 directs New York courts, in exercising concurrent jurisdiction, to recognize and give “effect to any tribal law or custom.” In this case, the Nation provided Respondent Noonan with affidavits from Nation officials. (R. 272-281). These affidavits provide irrefutable evidence that the Decedent, at the time of death, possessed no title or interest, under the Nation’s laws, to land situated on the Nation’s Territory. (Id.). These affidavits also set forth the process of resolving disputes over businesses operating on its territory. (Id.). 19 Since their existence, the Arrowhawk and Hawk’s Nest have derived their value from their location within the Nation. (R. 477). Although these businesses are not an “arm of the tribe,” they seek to invoke the Nation’s treaty rights to protect their operations even while operating in violation of the laws of the Nation. (Id.). These facts show the dispute over their operations is not only a dispute between family members but also a public dispute with the Nation. Before the Nation permits anyone to operate these businesses on its territory, it must reach a consensual resolution over past violations and future compliance with its laws and customs. By issuing orders directing the businesses and their assets to be placed under the control of the Estate (a/k/a Respondent Thompson) and the Surrogate’s Court, Respondent Noonan has intruded upon the Nation’s exclusive authority to resolve such internal disputes and to make and enforce laws affecting its territory and its citizens. In Bowen, Supreme Court Justices Vincent E. Doyle and Penny M. Wolfgang attempted to resolve an internal political dispute among members of the Seneca Nation. 800 F. Supp. at 105. Although the justices intended to resolve the dispute by recognizing and giving effect to the Nation’s laws, Judge Arcara found: It makes no difference that the State Court would be applying only tribal law. Indeed, the threat to tribal sovereignty arises from that very fact: the Nation's internal affairs would be controlled by the rulings and interpretations of the Nation's laws by a court of a different sovereign. As the Supreme Court held, (citation omitted) the adjudication of any case arising on the reservation and involving 20 Indians “by any nontribal court ... infringes upon tribal lawmaking authority.” Such adjudication “cannot help but unsettle a tribal government's ability to maintain authority.” Id. at 122. Judge Arcara found this “threat” clearly violated the nation’s treaty- protected rights of self-government and exclusive authority over internal tribal affairs, in violation of the Supremacy Clause of the United States Constitution. Id. at 136. Since the deprivation of constitutional rights constitutes “irreparable injury,” a preliminary injunction was issued “as a matter of course.” Id. at 137. Respondent Noonan’s rulings not only threaten the Nation’s sovereignty but also undermine the Nation’s efforts to carry out its laws and the Nation’s ability to maintain authority over its citizens. By exercising authority outside of his jurisdiction, Respondent Noonan has infringed upon the Nation’s treaty-protected rights of self-government and exclusive authority over internal affairs, in violation of the Supremacy Clause. Id. at 136-37. B. The Nation Has No Other Adequate Remedy at Law Respondents Noonan and Thompson argued before the Appellate Division the Nation’s amended petition should be dismissed because the Nation has or had other avenues to seek adequate relief under the law. First, they asserted the Nation could have sought relief from Respondent Noonan by participating in its 21 jurisdictional hearing. (Noonan Br. at 28-30; Brief of Respondent Coreen N. Thompson [“Thomspon Br.”], dated September 19, 2014,7 at 5, 11, 18). Next, they claimed the Nation, as an amicus in appeals and lawsuits brought by Respondent Joan Peters, could adequately protect its sovereign authority to make and enforce its own laws. (Noonan Br. at 29-30). Respondent Noonan argued the Nation “voluntarily withdrew” from the Surrogate proceedings, “relinquishing . . . ‘an opportunity to be heard under a limited appearance which does not waive its sovereign immunity.’ ” (Noonan Br. at 28). Respondent Thompson describes the Nation’s decision “not to participate” in the jurisdictional hearing before Noonan as “tantamount to failing to prevent any prejudice” to its rights. (Thompson Br. at 18). But submission to state court jurisdiction and cross-examination on the validity of its own laws would violate the very sovereignty the Nation seeks to protect here. Instead, the Nation’s only viable option was to seek a writ of prohibition to protect its sovereign rights. In his November 25, 2013 Decision and Order, Respondent Noonan recognized the Nation’s “sovereign immunity generally bars third-party subpoenas generated in private civil litigation insofar as they are directed to the tribal nation or tribal officials acting in their official capacity and within their scope of 7 The Brief for Respondent Coreen N. Thompson, dated September 19, 2015, was previously filed with this Court pursuant to Rule 500.22(c), when the Nation filed its motion for leave to appeal. 22 authority.” (R. 337). He then stated “the central issue of tribal governance” was the reason “the Nation, Chief and Clan Mothers” were subpoenaed to appear before him at the jurisdictional hearing. (Id. at 338). Although Respondent Noonan could not compel the Nation or its officials to appear, he ruled their refusal to subject themselves to the surrogate’s process precluded them from being considered a party to those hearings and, therefore, the Nation had no standing to produce witnesses or to present evidence as to its customs, laws and traditions. (Id.). Instead, the Nation had the Hobson’s choice to either waive sovereign immunity and subject the Nation’s governmental officials to cross-examination at a judicial hearing, or assert sovereign immunity and stand on the sidelines while Noonan decided whether the Nation had “effectively” adopted laws and customs to supplant the laws of New York. (Id. at 338-39). Either choice would irreparably harm the Nation and impermissibly infringe upon the Nation’s right to self- government and to make and enforce its laws. See Bowen, 880 F. Supp. at 122. Respondent Noonan’s far-reaching ruling impermissibly made the Nation “subservient to the orders and directions of the courts of New York State.” Bennett, 47 Misc.2d at 285. The Nation cannot protect its sovereignty by standing on the sidelines as an amicus. First, only a party may seek legal relief from a court. Second, only the Nation has standing to protect its sovereign rights. Third, the Nation has chosen to 23 be a party in this proceeding by which the Nation seeks the only adequate and available remedy -- an order prohibiting a state court from acting or threatening to act without or in excess of its constitutional and statutory jurisdiction. Finally, Respondent Thompson argued that “[t]he Estate and beneficiaries have no other remedy.” (Thompson Br. at 17). This is simply untrue. Under the Nation’s customs, laws and traditions, all respondents named in this action may resolve their disputes in a consensual process, initiated by their Clan Mothers and heard at the Nation’s Longhouse. (R. 299-300). As Respondent Thompson’s own expert testified during Respondent Noonan’s jurisdictional hearing, this consensus process has worked for centuries and is a “deliberative, thorough and inclusive” process whereby “a final resolution will be implemented without opposition and thereby promoting community support and cohesion for generations to come.” (R. 385: 4-19, 619). Respondent Thompson, however, refuses to allow these disputes to be resolved pursuant to the Nation’s customs, laws and traditions. (R. 273 ¶8, 294). Shortly after the death of Decedent, members of the Peters family brought their issues to their Hawk Clan Mother. (R. 209 ¶ 8, 212-13, 273¶ 8, 277 ¶¶14-15, 279-80 ¶¶ 7-8). As a matter of Nation law and custom, once such issues have been discussed within the respective clans of all affected parties, the matter would move 24 to the Longhouse. Respondent Thompson, however, has never spoken to her Bear Clan Mother about this matter. (R. 272-73 ¶¶ 7-8). Without any evidentiary support, Respondent Thompson claimed in her brief she sought assistance from Chiefs Roger Hill and Darwin Hill “to carry out an Order of the Surrogate’s Court on May 2, 2012.” (Thompson Br. 14). She further stated “[b]oth chiefs refused to get involved and said they didn’t want the Nation dragged into the estate.” (Id.). These unsupported statements imply a fundamental misunderstanding of the roles played by chiefs and clan mothers in the Nation’s deliberative process of dispute resolution under its customs, laws and traditions. The Nation’s customary process for resolving disputes relating to land use and occupancy begins with a clan member bringing a problem or dispute to his/her clan mother for discussion within the clan. (R. 273¶ 8, 277 ¶¶14-15, 279 ¶¶ 7-8). The Nation’s law prohibits state courts from resolving such disputes. If, as in this case, the dispute involves citizens of different clans, then the dispute may be brought to the Longhouse for resolution. (Id.). Clan mothers and chiefs do not issue rulings in these disputes; they facilitate discussion and consensus resolution. (R. 385: 4-10). As Respondent Thompson’s own expert stated, chiefs and clan mothers are selected because of “their ability to gather the minds of the people and to assist the people in reaching consensus on issues.” (Id.). Under the Great Law, a clan mother cannot disregard the views of her clan, nor can a chief disregard the 25 recommendation of his clan mother. (R. 163 ¶24, 386: 5-9]). The Great Law, therefore, envisions and requires a consensual process of dispute resolution, which takes into consideration the views of all Nation citizens. (R. 385: 4-22). In this case, this process has been stalled because Respondent Thompson has refused to participate, and has sought relief before a state court lacking subject matter jurisdiction over civil disputes involving the Nation and its citizens. C. Respondent Noonan’s Subsequent Orders Have Not Rendered the Nation’s Amended Petition Moot Both Respondents Noonan and Thompson have argued that because the Acting Surrogate has “declined to exercise jurisdiction over realty located within the sovereign territory of the Tonawanda Seneca Nation,” there is presently “no ‘act’ or ‘threat to act without jurisdiction in [this] matter,’ ” and therefore, “no basis whatsoever for a proceeding seeking prohibition.” (Thompson Br. at 11; Noonan Br. at 16-18, 24). They ignore Respondent Noonan’s orders directing the New York State Police and/or the Genesee County Sheriff to assist Thompson in evicting a citizen of the Nation from his home on Nation territory, changing locks on buildings, seizing control of businesses operating on the Nation’s territory and giving Respondent Thompson authority to seize all personal property “located anywhere on the Tonawanda Seneca Nation,” even if located in buildings under the Nation’s exclusive control. (R.569, 600). The Appellate Division Court has 26 already ruled these orders do not render the relief sought by the Nation moot. (R. 677). The issue presented in the Nation’s amended petition is jurisdictional in nature: does any New York State court have the jurisdiction to hear and determine civil disputes affecting the Nation’s sovereign right to make and enforce its own laws regarding use and occupancy of land within its territory? This issue is not academic, hypothetical, abstract or moot. The Nation has the exclusive right to decide who may possess and use land within its territory and to set the conditions for such use and possession. The Nation already informed Respondent Noonan any business previously operated by Decedent had been “operat[ing] totally outside the laws of the Nation in defiance of them.” (R. 294). A state court judge has no authority to decide who may operate a business on the Nation’s territory without infringing upon the Nation’s right to make and enforce its own laws. As Decedent acknowledged in his Will, the “intangible right” to operate a business on the Nation’s territory is a right bestowed only by the Nation. (R. 184). No Nation citizen has a right or entitlement to ask a state court judge to decide to whom this “intangible right” should be given. No provision in any Will can give jurisdiction to a state court to exercise sovereign authority. In addition, even if Respondent Noonan has declined to exercise jurisdiction over any “real” property within the Nation’s territory, he has left the door open for 27 other state courts in the future to exercise such jurisdiction. Estate planners advising other Native Americans need to know whether a state court has jurisdiction in such matters. These are significant and important questions that have a likelihood of repetition unless addressed in these proceedings. CONCLUSION For the reasons stated above, Appellant Tonawanda Seneca Nation respectfully requests the Memorandum and Decision of the Appellate Division of the Fourth Judicial Department, entered on November 14, 2014, be reversed and the Appellant Division be directed to rule upon the merits of whether a judgment in the nature of prohibition should be issued, pursuant to Article 78 of the Civil Rules Practice Law and Rules, against Respondent Robert C. Noonan, a County Court Judge assigned to the Surrogate Court for the County of Genesee, and any other judge assigned to the Surrogate Court for the County of Genesee (1) prohibiting the Surrogate from exercising jurisdiction over disputes involving the title, use and possession of land within the Nation’s Territory, including the intangible right to operate a business on the Nation’s Territory; (2) vacating any and all prior 28 decisions and/or orders relating such matters; and (3) for such other and further relief as may be just, proper, and equitable. Dated: Orchard Park June 11, 2015 MURPHY MEYERS, LLP By ______________________________________ Margaret A. Murphy, of counsel Attorneys for the Petitioner Tonawanda Seneca Nation 6506 East Quaker Road, Suite 200 Orchard Park, New York 14127 Telephone: (716) 662-5060