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

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.