Memorandum of Law in Support of Motion to Add Parties

United States District Court

Western District of New York

Daniel T. Warren

Plaintiff,

vs.

United States of America, individually, and as trustee of the goods, credits and chattels of the federally recognized Indian nations and tribes situated in the State of New York; et al.

Defendants

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Memorandum of Law in Support of Motion to Add Parties

Case # 06-CV-00226 E(SR)

Preliminary Statement

This action was commenced on April 6, 2006. The State Defendants have filed a motion to dismiss this action on May 31, 2006 and the Federal Defendants moved to dismiss this action on July 24, 2006. The Seneca Nation of Indians moved for leave to file a brief as amicus curiae to urge dismissal of this action based on FRCP 19 for failure to join it as a party and asserting its sovereign immunity from being joined as a party to this action on August 17, 2006. Plaintiff denies that the Seneca Nation of Indians is a necessary or indispensable party to this litigation as set forth in Plaintiff’s opposition to the State Defendant’s motion to dismiss which is incorporated by reference herein. However, Plaintiff acknowledges that the proposed parties are proper parties that may be added to this action. Plaintiff additionally seeks leave to add the proposed parties in the event that this court determines that they are indispensable and that this action may not proceed in their absence.

Sovereign Immunity is not a bar to Joinder of Officers of the Seneca Nation

Officers of a sovereign may not act in excess of their lawful authority. For when they do they will not be acting on behalf of the sovereign they allegedly represent, and will thereby be stripped of the immunity conferred to that sovereign. As the United States Court of Appeals for the Second Circuit held in Garcia v. Akwesasne Housing Authority, 268 F.3d 76 (2d Cir. 10/03/2001) “Although the AHA itself cannot be made to pay damages and cannot even be named as a defendant, Garcia can still obtain injunctive relief against it by suing an agency officer in his official capacity. See Santa Clara Pueblo v. Martinez, 436 U.S. at 59 (citing the doctrine of Ex parte Young, 209 U.S. 123 (1908)); Puyallup Tribe v. Dep't of Game, 433 U.S. 165, 171-72 (1977); Bassett v. Mashantucket Pequot Tribe, 204 F.3d at 358-59 (2d Cir. 2000); cf. Board of Trustees v. Garrett, 121 S. Ct. 955, 968 n.9 (2001) (even though state sovereign immunity precludes damages suits against states under Title I of the Americans with Disabilities Act, the doctrine of Ex parte Young permits private plaintiffs to sue a state "for injunctive relief").” In fact the United States Supreme Court in Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 stated “There is no doubt that sovereign immunity bars the State from pursuing the most efficient remedy, but we are not persuaded that it lacks any adequate alternatives. We have never held that individual agents or officers of a tribe are not liable for damages in actions brought by the State. See Ex parte Young, 209 U.S. 123 (1908)” The Ex Parte Young doctrine applies to Indian nations and tribes just as it applies to the States (see Tamiami Partners v. Miccosukee Tribe of Indians, 63 F.3d 1030 at 1050-1051; Santa Clara Pueblo v. Martinez, 436 U.S. 49 at 59; Tenneco Oil Co. v. Sac & Fox Tribe of Indians, 725 F.2d 572).

Mr. Snyder as President of the Seneca Nation of Indians and John Pasqualoni as President and Chief Executive Officer of Seneca Gaming Corp. together with the respective State Officers will be violating state and federal law and acting beyond their scope of authority if gambling under the Indian Gaming Regulatory Act on the Buffalo Site is determined to be prohibited for the reasons asserted by the Plaintiff in this action (New York Penal Law Article 225 and 18 USC § 1166, 1957; 25 USC §§ 232, 233, 2719). Therefore they would be acting in excess of the sovereign’s authority and will not be protected by the sovereign’s immunity and prospective declaratory and injunctive relief is available to prohibit continued illegal activity.

Furthermore, the declarations and prohibitive injunction sought here does not rise to the level of interference that triggers sovereign immunity.

Seneca Nation’s Sovereign Immunity was waived by IGRA

Since the relief requested is prospective declaratory and injunctive relief it appears that the majority of the limited case-law on this issue supports the view that IGRA waived tribal sovereign immunity in the narrow category of cases where compliance with IGRA's provisions is at issue and where only declaratory or injunctive relief is sought. See Montgomery v. Flandreau Santee Sioux Tribe, 905 F. Supp. 740, 745 (D.S.D. 1995) ("The Court has subject matter jurisdiction to consider whether defendants [tribes] have complied with [IGRA]."); Calvello v. Yankton Sioux Tribe, 899 F. Supp. 431, 438 (D.S.D. 1995) ("[F]ederal courts may find a waiver of tribal sovereign immunity for the purpose of enforcing the provisions of the IGRA where prospective injunctive relief, and not monetary relief, is sought."); Maxam v. Lower Sioux Indian Community of Minnesota, 829 F. Supp. 277 at 281 (holding that, by engaging in gaming, tribe waives sovereign immunity for narrow purpose of determining compliance with IGRA); Ross v. Flandreau Santee Sioux Tribe, 809 F. Supp. 738, 745 (D.S.D. 1992) ("Engaging in gaming pursuant to the IGRA constitutes an express waiver of sovereign immunity on the issue of compliance with the IGRA."); Cohen v. Little Six, Inc., 543 N.W.2d 376, 380 (Minn. Ct. App. 1996) ("LSI's operation of a gaming hall subjects it to a non-tribal court's authority to enforce compliance with the IGRA, not claims for money damages."), aff'd 561 N.W.2d 889 (Minn. 1997). But see Davids v. Coyhis, 869 F. Supp. 1401, 1408-09 (E.D. Wis. 1994) (explicitly rejecting the reasoning of Ross and Maxam).

Tribal Sovereign Immunity relating to Commercial Activities should be repudiated

In light of Victory Transport, Inc. v. Comisaria General, 336 F.2d 354 (2 Cir. 1964), cert. denied, 381 U.S. 934, 85 S. Ct. 1763, 14 L. Ed. 2d 698 (1965), an Indian Nation or tribe’s purely commercial activity should not be protected by any claim of sovereign immunity. For present purposes, a summary of the general principles emerging from Victory Transport should suffice; the contemporary rationale for sovereign immunity is the avoidance of possible embarrassment to those responsible for the conduct of the nation's foreign relations; in determining the scope of the immunity which a sovereign enjoys, courts have therefore deferred to the policy pronouncements of the State Department, see, e. g., National City Bank of New York v. Republic of China, 348 U.S. 356, 360-361, 75 S. Ct. 423, 99 L. Ed. 389 (1955); the State Department has explicitly indicated that its policy is generally predicated on a "restrictive" theory of sovereign immunity -- "recognizing immunity for a foreign state's public or sovereign acts (jure imperii) but denying immunity to a foreign state's private or commercial acts (jure gestionis)."336 F.2d at 358. See 26 Dept. State Bull. 984 (1952); "the purpose of the restrictive theory of sovereign immunity is to try to accommodate the interest of individuals doing business with foreign governments in having their legal rights determined by the courts, with the interest of foreign governments in being free to perform certain political acts without undergoing the embarrassment or hindrance of defending the propriety of such acts before foreign courts,"336 F.2d at 360.

The United States Supreme Court deferred this questionable policy of an overarching sovereign immunity from suit whether the sovereign’s conduct are sovereign acts or commercial acts that developed almost by accident to be resolved by Congress. The Court stated “There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation's commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians. See Mescalero v. Jones, 411 U. S. 145 (1973); Potawatomi, supra; Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996). In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.” and went on to state “These considerations might suggest a need to abrogate tribal immunity, at least as an overarching rule. Respondent does not ask us to repudiate the principle outright, but suggests instead that we confine it to reservations or to noncommercial activities. We decline to draw this distinction in this case, as we defer to the role Congress may wish to exercise in this important judgment.” Kiowa Tribe of Okla. v. Manufacturing Technologies Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (U.S. 05/26/1998) This issue was most recently presented to the court in Inyo County v. Paiute- Shoshone India ns, 123 S.Ct. 1887, 155 L.Ed.2d 933 (U.S. 05/19/2003). However, the Court did not reach this issue.

There is no reason why this accidental doctrine of tribal sovereign immunity should be any more expansive than the sovereign immunity we afford friendly foreign nations and cover purely commercial activity and it should be abrogated to this extent.

Wherefore, plaintiff respectfully requests that the court enter an order adding the proposed parties as defendants in this action.

DATED: September 18, 2006
Buffalo, New York

______________________
Daniel T. Warren
Plaintiff, Pro Se
836 Indian Church Road
West Seneca, New York 14224

TO: Gina L. Allery, Esq.
U.S. Department of Justice
Environment & Natural Resources Div.
Indian Resources Section
P.O. Box 44378
L'enfant Plaza Station
Washington, DC 20026-4378

Peter B. Sullivan, Esq.

Assistant Attorney General

Office of the Attorney General of the State of New York

107 Delaware Ave., 4^th Floor

Buffalo, New York 14202

Riyaz A. Kanji, Esq.

Kanji & Katzen, PLLC

101 North Main St., Suite 555

Ann Arbor, Michigan 48104