Here is the opinion in this long-running dispute involving the Unkechauge Poospatuck smoke shop–Gristede Foods v. Unkechauge Poospatuck Smokeshop (E.D. N.Y.). Here, the court holds that the tribe is immune from suit, having demonstrated that it meets the Montoya test for tribal sovereignty — Gristede’s Foods DCT Order
An excerpt:
In light of the foregoing analysis of the evidence, the court finds that defendants have established by a preponderance of the evidence that the three Montoya criteria are satisfied. Consequently, the Unkechauge meets the common law definition of a “tribe” and is entitled to immunity from suit in the present action. “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Turner v. United States, 248 U.S. 354, 358 (1919). Supreme Court cases “recognize that the Indian tribes have not given up their full sovereignty” which is “of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete deference. But until Congress acts, the tribes retained their existing sovereign powers.” United States v. Wheeler, 435 U.S. 313, 322-323 (1978). There is no evidence that the Unkechauge waived or abandoned their tribal immunity or that Congress has abrogated the immunity of the Unkechauge. Because the Unkechauge is a tribe pursuant to federal common law, they enjoy sovereign immunity. Thus, in the absence of a waiver or congressional abrogation of immunity, the court lacks subject matter jurisdiction to determine plaintiff’s claims against the Tribe.
However, the smokeshop itself is not immune, the court applying a common law test to determine whether the smokeshop is an arm of tribal government:
The Poospatuck Smoke Shop has not satisfied these criteria. The only evidence that the Smoke Shop submitted in support of its status as an entity of the Unkechauge is Chief Wallace’s testimony that businesses on the Unkechauge tribal grounds must be licensed by the tribal council. (Wallace Tr. at 85, 157; 12/22/08 Oral Arg. Tr. at 41.) This testimony does not satisfy the above factors by a preponderance of the evidence for establishing that the Smoke Shop is an arm of the tribe. Therefore, the Poospatuck Smoke Shop’s motion to dismiss is denied.
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