New York Appellate Division

New York Appellate Division Refuses to Disturb Injunction in Chukchansi Leadership Dispute

Matthew L.M. Fletcher

Here is the opinion in Wells Fargo Bank NA v. Chukchansi Economic Development
Authority (N.Y. A.D.):

Wells Fargo v Chukchansi

An excerpt:

Appellants contend that defendants-respondents Nancy Ayala, Karen Wynn, Charles Sargosa, and Tracy Brechbuehl (the Ayala faction or the individual Ayala defendants) do not enjoy sovereign immunity because their actions were illegal and not performed in an official capacity. However, to decide whether the Ayala faction’s actions were illegal, a court would have to determine whether the Ayala faction was the legitimate Tribal Council; this it may not do (see Sac & Fox, 340 F3d at 767).

Briefs:

Wells Fargo Brief

Chukchansi Brief (Marsten)

Chukchansi Brief (Rosette)

Lower court materials here, here, and here.

New York Appellate Court Rules in Favor of Indian Cigarette Shipper on Procedural Issue

Matthew L.M. Fletcher

Here is the opinion in People v. Laughing.

An excerpt:

At the time the instant charge was lodged against defendant, and at present, the taxability by New York of Native American manufactured cigarettes under the circumstances at play here lacked clarity. It is undisputed that the Department had a forbearance enforcement policy with respect to Native American manufactured cigarettes that are transported between reservations. Furthermore, defendant asserts that, when faced with decisions regarding the applicability and enforcement of the Tax Law to various situations involving the possession or transportation of Native American manufactured cigarettes, the Division almost uniformly deferred to the expertise of the Department and the primacy of its dealings with the Indian nations. While there can be no question that “it is the prerogative of a District Attorney to prosecute people who commit crimes,” it is equally true that “one of the reforms effected through the years in the procedure to dismiss accusatory instruments in the interest of justice was to remove the power to do so from the offices of District Attorney and Attorney–General and lodge it, instead, in the courts alone” (People v. Rickert, 58 N.Y.2d 122, 131 [1983] ). To be sure, the policy of the Department and the issues surrounding the Division’s actual enforcement of the Tax Law with respect to Native American manufactured cigarettes may very well be found insufficient to justify dismissal of the indictment in the interest of justice. Yet, we simply cannot say that the testimony sought on those issues “is utterly irrelevant” to the question of whether defendant’s prosecution here would be unjust[.]

NY Appellate Division Affirms NY State Police Authority to Confiscate HCI Smokes

Matthew L.M. Fletcher

Here is the opinion in HCI Distribution Inc. v. New York State Police Troop B Commander (N.Y. A.D.), reversing the lower court:

HCI v NY State Police

Lower court materials here.

N.Y. Appellate Division Concludes Tribal Enterprise Formed under Tribal Law Not Immune From Suit

Matthew L.M. Fletcher1 Comment

Here is the opinion in Sue/Perior Concrete and Paving Co. v. Lewiston Golf Course Corp.:

Sue Perior v Lewiston Golf

An excerpt:

Other factors, however, including what the Court of Appeals has characterized as the “[m]ore important[]” financial factors, weigh in favor of a determination that LGCC does not share in the Nation’s sovereign immunity (id.). With respect to whether LGCC’s “purposes are similar to or serve those of the tribal government” (id.), we conclude that this factor supports the denial of sovereign immunity to LGCC. In minutes from its August 2002 meeting approving the creation of SGC, the Council declared that “it is . . . the policy of the Nation to promote the welfare and prosperity of its members and to actively promote, attract, encourage and develop economically sound commerce and industry through governmental action for the purpose of preventing unemployment and economic stagnation,” and that “the Gaming industry is vitally important to the economy of the Nation and the general welfare of its members.” To that end, the Council created SNFGC for the purpose of “developing, financing, operating and conducting the Nation’s gaming operations on its Niagara Falls Territory at the Niagara Falls Gaming Facility.” In creating the LGCC, the Council declared that, “in furtherance of the economic success of the Nation’s gaming operations, [SNFGC] has commenced development of a . . . golf course located in the Town of Lewiston, New York[, which] will be developed and operated as an amenity to . . . SNFGC’s casino operations, . . . the purpose of which amenities is to enhance the overall success and profitability of the casino’s operations” (emphasis added). In that manner, the Council believed that the golf course project “may reasonably be expected to benefit, directly or indirectly, the Nation” (emphasis added). Thus, the Council’s own statements reflect that the purpose of LGCC – to develop a golf course as an “amenity” to the Nation’s gaming operations – is several steps removed from the purposes of tribal government, e.g., “promoting tribal welfare, alleviating unemployment, [and] providing money for tribal programs” (Gristede’s Foods, Inc., 660 F Supp 2d at 477; cf. Ransom, 86 NY2d at 560).

These common law tests to decide whether a tribal enterprise is under the cloak of tribal immunity are baffling, generating far too many unpredictable results like this one. It’s fairly clear to me that the wide majority of courts would conclude a tribally-owned enterprise chartered under tribal law is immune without looking toward subjective factors such as what the purpose of the corporation is — tribes just aren’t for-profit entities. They’re governments.

New York AD Holds State Law Rather than Tribal Law Applies in Construction Accident

Matthew L.M. Fletcher

Here is the opinion in Hill v. Seneca Nation of Indians.

Update in Oneida Indian Nation v. Hunt Construction

Matthew L.M. Fletcher

Here is a modification of the prior opinion. A 2009 appellate order is here.

Seneca Nation v. State of New York Appellate Division Materials

Matthew L.M. Fletcher

Here:

Appellate Division Order to Show Cause

Appellate Court Decison and Order

Marshall Investments Corp. v. Harrah’s — N.Y. Courts Strike Tortious Interference with Contract Claim on Void Gaming Management Contract

Matthew L.M. Fletcher

Here is the opinion in Marshall Investments Corp. v. Harrah’s Operating Company, Inc. (N.Y. A.D.) (unpublished), pages 6-7 of the pdf.

An excerpt:

The subject pledge agreement did not constitute a management contract which required the approval of the National Indian Gaming Commission (25 CFR 502.15; cf. Machal, Inc. v Jena Band of Choctaw Indians, 387 F Supp 2d 659, 666-667 [2005]). However, because it changes the Tribe’s obligations, requiring them to make payments into escrow, and alters their liabilities, giving the right to sue and a veto over certain modifications of a separate management agreement to plaintiffs, the pledge agreement is a modification or assignment of rights under the management agreement. As such, it is void because it was never approved by the commission (25 CFR 533.7). Since the underlying contract is void, plaintiffs cannot recover for tortious interference with that contract (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]).

N.Y. Appellate Court Reverses Eminent Domain Acquisition of Land that Includes “Historic Indian Remains”

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re Courtland County.

An excerpt:

Petitioner argues that the taking should nevertheless be upheld on the alternative ground that it was exempt from the hearing requirements of EDPL article 2 because the taking was de minimis ( see EDPL 206[D] ). The fact that the amount of land is not substantial does not necessarily render a taking de minimis ( see Matter of Marshall v. Town of Pittsford, 105 A.D.2d 1140, 1140-1141 [1984], lv denied 64 N.Y.2d 606 [1985] ). Initially, we are reluctant to retroactively find compliance with the EDPL under the facts of this case where petitioner opted to attempt to pursue condemnation under a separate statute with different procedures. In any event, we are unpersuaded that this record supports a de minimis determination in light of the close proximity of the project to land with significant historic remains (there are two letters in the record from Native American groups articulating concerns), together with the fact that petitioner expanded the scope of the project from what was originally proposed and such expansion resulted in the State Office of Historic Preservation suspending its earlier approval.

N.Y. Appellate Division Dismisses Contract Counterclaims against Oneida

Matthew L.M. Fletcher1 Comment

Here is the opinion in Oneida Indian Nation of N.Y. v. Hunt Construction Group, reversing a trial court order that accepted jurisdiction over four counterclaims against the Nation — Oneida Indian Nation v. Hunt Constr Group

An excerpt:

Plaintiff, the owner of the Turning Stone Casino & Resort, commenced this action seeking damages resulting from the alleged breach by defendant of its construction contract with plaintiff. Plaintiff moved to dismiss the second through fifth counterclaims on the ground that it had waived sovereign immunity only with respect to counterclaims seeking to enforce the terms of the contract and thus that Supreme Court lacked subject matter jurisdiction over the second through fifth counterclaims. We agree with plaintiff that the court erred in denying those parts of the motion seeking to dismiss the second counterclaim to the extent it alleges the breach of implied warranties; the fourth counterclaim, for quantum meruit and unjust enrichment; and the fifth counterclaim, for an account stated. We therefore modify the order accordingly.