108 F.Supp.3d 29
United States District Court,
N.D. New York.
Cayuga NATION and John Does 1–20, Plaintiffs,
Howard TANNER, Village of Union Springs Code Enforcement Officer, in his Official Capacity; Edward Trufant, Village of Union Springs Mayor, in his Official Capacity; Chad Hayden, Village of Union Springs Attorney, in his Official Capacity; Board of Trustees of the Village of Union Springs, New York; and Village of Union Springs, New York, Defendants.
No. 5:14–CV–1317.
Signed June 11, 2015.
DAVID N. HURD, District Judge.

This latest pair of motions are another chapter in the long-running dispute between plaintiff Cayuga Nation (the “Nation”) and defendant Village of Union Springs (the “Village” or “Union Springs”) over Lakeside Entertainment, a Nation-controlled gaming facility located in Union Springs.

The Nation, along with John Does 1–20 (the “Does”), recently filed suit against the Village and a laundry list of its officials claiming the federal Indian Gaming Regulatory Act (“IGRA”) pre-empted the Village from enforcing its local anti-gambling laws against the Nation and its establishment. The Nation moved for a preliminary injunction and the Village cross-moved to dismiss the complaint. A temporary restraining order was entered in the interim.

On May 19, 2015, a Memorandum–Decision and Order issued granting the Village’s cross-motion to dismiss—the Nation, embroiled in an internal dispute over its leadership, was unable to establish standing to bring the pre-emption suit; the unnamed Does, alleging only vague possibilities of possible future harm to their persons, were unable to demonstrate imminent injury. Cayuga Nation v. Tanner, 2015 WL 2381301 (N.D.N.Y. May 19, 2015) (the “May 19 Decision ”). The...


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... as a misdemeanor.” But even then, this Village resolution would only begin to establish a credible threat of enforcement when viewed in conjunction with the complaint’s allegation of a July 2013 resolution by the Village to enforce this provision against the Nation. Compl. ¶ 38 & Ex. B, ECF No. 1, 24.

“A government official’s statement that a statute prohibits a type of conduct in the abstract—even where the official also states [his] intent to enforce the statutory prohibition against the public generally—is usually insufficient, without more, to establish that prosecution is imminent against a particular plaintiff.” Jones v. Schneiderman, 101 F.Supp.3d 283, 291, 2015 WL 1454529, at *4 (S.D.N.Y. Mar. 31, 2015) (comparing cases); see also Rincon Band of Mission Indians v. San Diego Cnty., 495 F.2d 1, 4 (9th Cir.1974), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974) (holding that government officials’ statements to plaintiffs that gambling was impermissible on tribal land “under [a] county ordinance,” and that “all the laws of the county would be enforce,” failed to establish a sufficient “threat of prosecution” for standing purposes).

Therefore, at the very least, Cayuga Nation’s conclusion—that vague assertions of possible future enforcement action directed against the Does in particular, as opposed to the Nation’s Lakeside Entertainment facility generally, were an insufficient basis on which to confer standing—was not a clear error of law.4 See Hedges *34 v. Obama, 724 F.3d 170, 195 (2d Cir.2013) (“The Supreme Court’s jurisprudence regarding how imminent a threat must be in order to support standing, however, has been less than clear.”). To be sure, the Village has done a fair amount of saber-rattling in its...


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... the bingo hall eight years after this Court unequivocally held that the Nation could not assert immunity from the Village’s laws and ordinances.” Def.’s Mem., ECF No. 60, 16.

The Nation has the better part of this argument. An irreparable harm is a harm for which “a monetary award cannot be adequate.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Ill-advised or not, the Nation credibly claims that not only would the Village’s enforcement of its anti-gaming ordinance be an affront to its sovereignty, its citizens also depend heavily on the facility to provide funding for public services. Indeed, the irreparable harm requirement is generally satisfied where “enforcement *35 of a statute or regulation threatens to infringe upon a tribe’s right of sovereignty.” Seneca Nation, 2010 WL 4027795, at *2 (collecting cases). And much like the tax law amendments at issue in Seneca Nation, “[t]he potential loss of an entire economy that currently supports many of each Nation’s members and services is a harm that cannot be measured by monetary damages alone.” Id. Accordingly, the threat of irreparable harm favors granting the Nation’s motion.


2. Substantial Injury to other Parties
The Nation next argues the Village will not suffer any substantial injury if a stay were issued primarily because it has largely consented to maintaining the status quo—allowing the gaming facility to remain open—during the run up to, and course of, this litigation. The Village responds that the reopening of Lakeside...


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... court to attempt to resolve the gaming issue. See Seneca Nation, 2010 WL 4027795, at *3 (concluding state defendant was unable to show substantial injury where it “voluntarily chose to forebear” enforcing the tax at issue “for many years” and concluding the “minimal, additional delay pending appeal” was insignificant when weighed against the potentially irreparable damage to the Seneca Nation’s economy). The same balance exists in this case, especially given the apparent lack of any ongoing hostilities. Accordingly, the Village has not demonstrated it would suffer substantial injury if an injunction were entered.


3. Likelihood of Success
The Nation asserts that the May 19 Decision, which simply “misunderstood the significance of certain language in the Bureau of Indian Affairs’ (“BIA”) February 20, 2015 decision,” provides a troubling roadmap to success for any disgruntled tribal faction seeking to disable a tribe’s access to federal court. Pl.’s Mem. at 12.

There is little doubt that courts “owe deference to the judgment of the Executive Branch as to who represents a tribe.” Timbisha Shoshone Tribe v. Salazar, 678 F.3d 935, 938 (D.C.Cir.2012) (citation and explanatory parenthetical omitted). To that end, the Nation argues Cayuga Nation “asked the wrong question” when focusing on the BIA’s statements about Halftown’s authority being limited to administering certain pre-existing contracts, since the “BIA will not issue a recognition decision except when tied to [ ] a discrete request,” such as resolving the issue of authority under a particular contract. Pl.’s Mem. at 12.

It is true that the BIA takes a decidedly circumspect approach to issues of tribal governance. This approach makes good sense, especially given that the Nation, a sovereign entity, retains the sole authority to actually resolve its internal leadership disputes. See California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1263 (D.C.Cir.2008) (“Since the days of John Marshall, it has been a bedrock principle of federal indian law that every tribe is capable of managing its own affairs and governing itself.” (citation and internal quotation marks omitted)).

*36 Indeed, “principles of tribal sovereignty and self-determination [ ] serve to constrain BIA’s intrusion into internal tribal disputes, unless it is truly necessary as an incident to satisfying some separate Federal obligation.” Cayuga Indian Nation v. E. Reg’l Dir., 58 IBIA 171, 178 (Jan. 16, 2014). “[D]isfunctionality [sic ] or even paralysis within a tribal government, standing alone, does not ... trigger some free-standing obligation for BIA to end the stalemate.” Id. at 179. Simply put, “[i]f there is no separate need for Federal action during the Nation’s tribal government dispute, BIA is not required to recognize anyone as the Nation’s representation or any composition of the Council, nor would it be appropriate for BIA to do so.” Id. at 181 n. 7.

The BIA’s most recent correspondence indicates it has chosen to recognize the 2006 Council, the last undisputed tribal leadership, on an “interim” basis as part of its decision regarding how funding will be provided under certain community services contracts. See Poitra Letter, ECF No. 45–1, 2. But this letter also notes, consistent with the BIA’s general principles of deference, that the Nation’s ongoing leadership dispute is not an excuse for the BIA to “throw up its hands and conduct all government-to-government relations with the Nation 2006 Council indefinitely.” Id. at 7. Indeed, the BIA expressly stated that it planned to “request a consensus resolution of the Nation 2006 Council before entering into subsequent contracts” with the Nation. Id.

This circumspect recognition language is the same stumbling block noted in Cayuga Nation. 2015 WL 2381301 at *4 n. 6 (“At this juncture, the BIA recognizes the Nation 2006 Council as the undisputed leader of the Cayuga Nation. Whether the Nation 2006 Council properly authorized this suit is an altogether separate matter.”). Much as in Salazar, “[t]he fact is that we have a letter from the Executive Branch recognizing [a particular tribal faction], and we must not turn a blind eye to facts in assessing jurisdiction.” 678 F.3d at 939.

But although this particular Executive Branch letter identifies the Nation 2006 Council as the appropriate leadership, it remains entirely unclear whether that body—with its requirement of unanimous consent as a prerequisite to Council action—authorized filing this lawsuit in the first place. Cayuga Nation, 2015 WL 2381301 at *4 (“As three members of the Nation 2006 Council support this lawsuit and three members oppose it, it is unclear whether the action has been properly authorized ....”).

Likewise, despite the Nation’s insistence to the contrary, the BIA’s most recent letter also failed to articulate whether the scope of Halftown’s status as federal representative covered unilaterally authorizing lawsuits, especially where three members of the 2006 Council actively oppose the suit and further dispute whether Halftown’s authority to act on the Nation’s behalf even includes filing such an action. Accord George v. E. Reg’l Dir., 49 IBIA 164, 193 (May 4, 2009) (noting Halftown’s role as “tribal representative to the Federal government .... is defined in the 2003 Designation Letter,” but expressly disclaiming any decision on “the precise contours of the authority defined in that letter” or on “Halftown’s authority beyond the scope of that letter”). Given these ongoing disputes between the 2006 Council members, the May 19 Decision concluded this action could not go forward.

Nevertheless, “[i]t remains an open question as to whether the Second Circuit will agree with [Cayuga Nation’s ] determination” and consequently “there is some possibility of success on appeal.” Seneca Nation, 2010 WL 4027795, at * 3; see also  *37 N. Mariana Islands v. Millard, 287 F.R.D. 204, 215 (S.D.N.Y.2012) (noting argument had “sufficient force amidst admittedly murky...


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... size of the bond; they argue only that the motion for a stay should be denied outright”). However, the only issue to be resolved on appeal is that of the Nation’s standing to bring its IGRA pre-emption claim, not a final adjudication of the merits of that argument. Notwithstanding the broad authority of a trial court to impose terms that work to “secure the opposing party’s rights,” the Village has not articulated *38 a sufficient basis for such a drastic remedy and this request is declined.

Finally, the Village’s request for sanctions against the Nation for this latest round of motion practice is also rejected. At the very least, the Nation cannot be faulted for thoroughly briefing the nuanced interplay between the BIA’s circumspect treatment of the ongoing tribal leadership dispute and the constitutional requirements of standing.


The Does’ motion for reconsideration is denied. However, the Nation’s motion for an injunction pending the outcome of its appeal of the May 19 Decision is granted.

Therefore, it is


1. The Does’ motion for reconsideration is DENIED;

2. The Nation’s motion for an injunction pending appeal is GRANTED;

3. Pending the disposition of plaintiff Cayuga Nation’s appeal, defendant Village, its agents, servants, and employees and any person acting in concert with them are enjoined from taking any steps to restrict, interfere with, punish, or otherwise penalize any actions taken by the Cayuga Nation, its officers, its employees, or its other representatives in furtherance of Class...