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(Cite as: 2003 WL 24052010)

United States District Court,S.D. New York.

THE WESTERN MOHEGAN TRIBE AND NATION, a/k/a Muhheakunnuk, Plaintiff,

v.

THE STATE OF NEW YORK and George Pataki, Defendants.

No. 03 Civ. 1165(CLB).


Dec. 23, 2003.

Memorandum and Order

BRIEANT, J.

*1 By motion filed on October 15, 2003 (Doc. # 24) heard and fully submitted for decision on December 19, 2003, Defendants, the State of New York and Governor George Pataki, move this Court for an Order, pursuant to Rule 12(b)(1) and 12(b)(6), dismissing Plaintiff's Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

Plaintiff alleges and the Court assumes that it is an Indian nation or tribe with its reservation and principal location in Ulster County, New York. Defendant, George Pataki, as the Governor of the State of New York, is the chief administrative and executive officer of the State empowered, according to Plaintiff to hold title and other interests in real property on behalf of the State. This Court's jurisdiction is founded on 28 U.S.C. §§ 1331  and 1362.

Plaintiff, the Western Mohegan Tribe and Nation, a/k/a Muhheakunnuk (“the Western Mohegan Tribe”), commenced this action on February 21, 2003, seeking a declaration of Plaintiff's ownership and right to possess certain lands, claimed to be their reserved lands, in this District and elsewhere in the State of New York, and seeks immediate repossession of such lands. Plaintiff's original complaint also asserted these same claims against the Counties in which the lands were located and demanded damages for any waste committed with respect to such land, and for the fair rental value of the lands, from the time Plaintiff was disseised. On August 26, 2003, Plaintiff filed a voluntary dismissal and an amended complaint, dismissing the claims against all the County Defendants and removing the claim for monetary damages.

Background Facts

The following facts are assumed for purposes of this motion only. The Western Mohegan Tribe, during the Dutch colonial period, lived along the Hudson River and in an area from Lake Champlain to Long Island, which presently includes all or parts of Westchester County, Sullivan County, Greene County, Columbia County, Dutchess County, Rockland County, Putnam County, Orange County, Rensselaer County and Albany County. In 1621, the British signed a peace and friendship covenant with the Western Mohegan Tribe, however, after the acquisition of New York by the British from the Dutch, the land was confiscated from the Western Mohegan Tribe.

In 1790, Congress passed the Indian Trade and Intercourse Act, which reasserted exclusive federal jurisdiction over Indian Land Transactions. To date, there has been no treaty made with the Western Mohegan Tribe by the United States extinguishing title of the Western Mohegan Tribe to its claimed lands in New York. As a result, the Western Mohegan Tribe has been “dispossessed” of these lands without consent and without Congressional ratification. Plaintiff claims that Defendants are unlawfully claiming title to land that is not theirs, have used and occupied this land and have gained revenues from this land for their own benefit, in violation of Federal common law and the Indian Trade and Intercourse Act, 25 U .S.C. § 177.

*2 Defendants move to dismiss on the grounds that (1) the 11th Amendment protects Defendants from this suit; (2) the Plaintiff lacks standing since it is not a federally recognized tribe; (3) the claims are non-justiciable; and (4) the complaint fails to state a claim upon which relief can be granted. Defendants assert, in the event that this Court does not dismiss Plaintiff's complaint, that the action should be stayed pending a determination by the Bureau of Indian Affairs regarding federal recognition of the Western Mohegan Tribe.

Discussion

Pursuant to Rule 12(b)(1), when a Court lacks the statutory or constitutional power to adjudicate an action, a party or the court, sua sponte, may dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings.” Makarova v. United States, 201, F.3d 110, 113 (2d Cir.2000). The party asserting subject matter jurisdiction has the burden to establish, by a preponderance of the evidence that it exists. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996).

Dismissal under Rule 12(b)(6) is appropriate only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v.. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957).

11th Amendment Sovereign Immunity

The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This concept of sovereign immunity so created, has been extended to protect a State against suits brought by its own citizens or foreign sovereigns. Hans v. Lousiana, 134 U.S. 1 (1890) ; Principality of Monaco v. Mississippi, 292 U.S. 313 (1934). Native American Tribes are sovereigns, and similar to foreign sovereigns, are barred by the 11th Amendment from suing States. Blatchford v. Native Village of Noatak, 501 U.S. 775, 783 (1991) (“[I]f the [Constitutional] convention could not surrender the tribes' immunity for the benefit of the States, we do not believe that it surrendered the States' immunity for the benefit of the tribes.”).

“Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute[,]” Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989).

Plaintiff does not dispute that the 11th Amendment applies to it as an Indian Tribe. Plaintiff does not argue that the Congress abrogated state sovereign immunity in the Nonintercourse Act (“NIA”), nor could it, since the Eleventh Amendment had not been conceived at the time. Ysleta Del Sur Pueblo v. Laney, 199 F.3d 181, 288 (5th Cir.2000). Plaintiff contends, however, that the exception to a State's sovereign immunity as provided by Ex parte Young, 209 U.S. 123 (1908), allows it to sue both Governor Pataki, in his official capacity, and New York State.

*3 The Ex parte Young doctrine provides an exception to a state's sovereign immunity by means of a legal fiction; a plaintiff seeking prospective injunctive relief only, against an ongoing violation of federal law by a state official may proceed in federal court for that limited relief without implicating the sovereignty of the state. Before applying the Ex parte Young doctrine, a court must consider, in addition to the relief sought, whether the violation of federal law is ongoing and continuous and whether equitable relief would implicate special sovereignty interests. Idaho v. Coeur D'Alene Tribe of Idaho, 521 U.S. 261 (1997). “[W]here prospective relief is sought against individual state officers in a federal forum based on a federal right, the Eleventh Amendment, in most cases, is not a bar.” Idaho v. Coeur D'Alene Tribe of Idaho, 521 U.S. 261, 276-77 (1997).

The Western Mohegan Tribe has alleged ongoing violations by the state with respect to its property rights to certain lands in the state of New York, in contravention of federal law and now seeks only prospective injunctive relief. The Tribe argues that the relief it seeks falls within the Young exception. The Supreme Court, in Idaho v. Coeur D'Alene Tribe of Idaho, 521 U.S. 261, 276-77 (1997) , addressed the applicability of the Young exception as it relates to land claims by Indian Tribes against the State and state officials. The Tribe in that case brought an action to

establish its entitlement to the exclusive use and occupancy and the right to quiet enjoyment of the [certain] lands as well as a declaration of the invalidity of all Idaho statutes ... which purport to ... affect in any way the [certain] lands ... [and] sought a preliminary and permanent injunction prohibiting defendants from ... taking any action in violation of the Tribe's rights of exclusive use and occupancy, quite enjoyment, and other ownership interest in the [certain] lands....

See Idaho v. Coeur D'Alene Tribe of Idaho, 521 U.S. 261, 265 (1997). The Supreme Court held this to be a “functional equivalent of a quiet title action which implicates special sovereignty interests.” Idaho v. Coeur D'Alene Tribe of Idaho, 521 U.S. 261, 281 (1997). Had the Tribe prevailed, the Court concluded that “Idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury” and therefore, the Young exception was inapplicable. Idaho v. Coeur D'Alene Tribe of Idaho, 521 U.S. 261, 287 (1997).

Plaintiff attempts to distinguish the Coeur D'Alene case on the premise that the Tribe “sought exclusive use and occupancy together with the right of quiet enjoyment of the ... lands.” Plaintiff asserts that the claim in Coeur D'Alene extends beyond the concept of “Indian title” to a claim in the nature of “real estate title.” “Indian title”, Plaintiff explains, involves the right to camp, to hunt, to fish, to use the waters and the timbers which are traditional aboriginal uses of land. (Pl.'s memo. at 3).

*4 The Court does not believe that Plaintiff's claims can be so easily distinguished from the claims in Coeur D'Alene. Use of the rights to hunt, fish, camp and use timber from land, characterized as “Indian Title” by Plaintiff are inconsistent with allodial (or “English”) land title claimed by the State of New York, which allows such uses only by express permission. Here Plaintiff is “seeking a declaration of plaintiff's ownership and right to possess their reservation lands in the State of New York ... and relief restoring to them [sic] the possession of their [sic] lands.” (Pl.'s compl. ¶ 1). Whether the uses involve aboriginal uses or simply the repossession of the land, the Court concludes that Plaintiff's claims are the “functional equivalent of a quiet title action”. The lands at issue are all public lands, comprising mostly state parks and wildlife areas. FN1 If the Western Mohegan Tribe were to prevail in this action, New York's sovereign interest in its lands and waters would be severely affected. See Idaho v. Coeur D'Alene Tribe of Idaho, 521 U.S. 261, 287 (1997). The Ex Parte Young exception is therefore unavailable.

FN1. Much of the public land in New York was acquired by purchase, gift, condemnation or by bills of attainder passed against Tories; all of the State's predecessors in title exercised allodial ownership and excluded the Indians.

Concluding that this action is barred by the Eleventh Amendment and that the Ex Parte Young exception is unavailable to support the relief sought in the action, the motion is granted and the action is dismissed. Ordinarily such a resolution of a case is stated as a dismissal for lack of subject matter jurisdiction. This may not be correct. Bell v. Hood, 327 U.S. 678 (1946). This Court has subject matter jurisdiction over claims pleaded as within Ex Parte Young. The case is dismissed, alternatively, for failure to state a claim.

The Clerk shall file a final judgment.

SO ORDERED.

S.D.N.Y.,2003.

Western Mohegan Tribe and Nation v. State of N.Y.

Slip Copy, 2003 WL 24052010

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