Appendix — Fluent v. Salamanca Indian Lease Authority

Supreme Court brief1991

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IN THE

Supreme Court of the Uni CLERK

October Term, 1990

JOSEPH FLUENT, Individually and as a representative of the Class of

Salamanca Lessees holding 99year leases from Seneca Nation of

Indians; JAMES V. MONGILLO, Individually and as a representative

of the class of Salamanca lessees holding 50-year leases from the

Seneca Nation of Indians and KEITH MCCLAIN, Individually and as

a representative of the class of congressional village lessees holding 99-

year leases from the Seneca Nation of Indians; ROBERT ADAMIC,

Individually and on behalf of the class of lessees who signed the

‘40/40 Lease” Tendered by the Seneca Nation of Indians on or about

September 4, 1990; MARILYN ADAMIC, Individually and on behalf

of the class of lessees who signed the ‘‘40/40 Lease’ Tendered by the

Seneca Nation of Indians on or about September 4, 1990;

SALAMANCA COALITION OF UNITED TAXPAYERS, INC.,

Individually and on behalf of its membership,

vs.

SALAMANCA INDIAN LEASE AUTHORITY; DAVID FRANZ,

Individually and as Attorney for the City of Salamanca Indian Lease

Authority; ANTONIO CARBONE, Individually and as Mayor of the

Respondents.

(Additional Respondents continued inside Front Cover.)

Petitioners,

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

CourRT OF APPEALS FOR THE SECOND CIRCUIT.

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

JENNIFER A. COLEMAN

Counsel of Record

DAMON & MOREY

1000 Cathedral Place

298 Main Street

Buffalo, New York 14202

Telephone: (716) 856-5500

Attorneys for Petitioner

Betavie Times Publish‘ng Co.

Batavia, New York (716 344-2000

(Additional Respondents.)

City of Salamanca and also as member of the Salamanca Indian Lease

Authority; CITY OF SALAMANCA; PATRICK CALLAGHAN,

Individually and as Chairman of the Salamanca Indian Lease Authority;

LINDA RYCHCIK, Individually and as member of the Salamanca

Indian Lease Authority; HENRY STEFANSKI, Individually and as a

member of the Salamanca Indian Lease Authority; OWEN K.

PHILLIPS, Individually and as a member of the Salamanca Indian

Lease Authority; DANN COLVIN, Individually and as a member of the

Salamanca Indian Lease Authority; PAUL TAYLOR; PENNY

BUCKLEY; SENECA NATION OF INDIANS,

Respondents.

TABLE OF CONTENTS TO APPENDIX.

Page

Appendix A(1)—Decision of the United States Court

of Appeals for the Second Circuit Affirming

Judgment of the United States District Court for

the Western District of New York..............

Appendix A(2)—Order of the United States Court of

Appeals for the Second Circuit Granting Motion

to Expedite, February 5, 1991.................

Appendix A(3)—Order of the United States Court of

Appeals for the ‘Second Circuit Granting

Injunction to Maintain Status Quo, February 20,

Appendix B(1)—Order to Show Cause of the United

States District Court for the Western District of

New York, December 3, 1990..................

Appendix B(2)—Scheduling Order RE: Motion to

Dismiss and Motion for Temporary Restraining

Order of the United States District Court for the

Western District of New York, December 19, 1990

Appendix B(3)—Order Admitting Seneca Nation

Counsel Pro Hac Vice of the United States

District Court for the Western District of New

pC RS ere

Appendix B(4)—Decision and Order Denying

Temporary Restraining Order of the United

States District Court for the Western District of

Pew TOU, SOMMETY G, BOGE fa. ccc ccc csc cress

Appendix B(5)—Certification Order to New York

State of the United States District Court for the

Western District of New York, January 9, 1991 ..

Appendix B(6)—Certification Order to United States

of the United States District Court for the

Western District of New York, January 9, 1991 ..

15a

19a

22a

23a

24a

25a

43a

45a

ii.

Page

Appendix B(7)—Order Withdrawing Temporary

Restraining Motion as Against the Seneca Nation

of the United States District Court for the

Western District of New York, January 9, 1991 ..

Appendix B(8)—Decision and Order Granting

Motion to Dismiss of the United States District

Court for the Western District of New York,

SI Ti i 8 ak a eds 40k oan eee ke

Appendix B(9)—Order Granting Motion to Shorten

Time of the United States District Court for the

Western District of New York, January 25, 1991 .

Appendix B(10)—Order Granting Motion for Rule

54(b) Entry of Final Judgment Dismissing Seneca

Nation And Counts One, Eight and Ten of the

United States District Court for the Western

District of New York, January 29, 1991.........

Appendix B(11)—Judgment on Order of January 29,

1991 Granting Final Judgment per Rule 54(b) of

the United States District Court for the Western

District of New York, January 29, 1991.........

Appendix B(12)—Determination of Non-Intervention

by New York State of the United States District

Court for the Western District of New York,

ge OD Perr Pee re rare

Appendix B(13)—Determination of Non-Intervention

by United States of the United States District

Court for the Western District of New York,

Perey 6, TGGS oc cscs civil Sines

Appendix B(14)—Transcript Re: Judge Arcara’s

Findings on Motion Pursuant to Rule 54(b) of the

United States District Court for the Western

District of New York, January 29, 1991.........

Appendix C(1)—Treaty Between United States and

Seneca Nation (Big Tree Treaty—F. Stat. 601,

DOES BR ATO s+ ss canvass ee es ons eeus nas

47a

49a

66a

68a

Tla

72a

73a

76a

iii.

Page

Appendix C(2)—Treaty Between United States and

Seneca Nation (Buffalo Creek Treaty—F. Stat.

I, SO cede wb ened cess sesense yla

Appendix C(3)—Treaty between United States and

Seneca Nation (Buffalo Creek Treaty—F. Stat.

cis ch aes ch eevee ee ee sees 107a

Appendix D(1)—United States Statute (Forty-Third

Congress, Sess. II, Ch. 90, Act of February 19,

ES Oe, Pee eee eee Tee eee ee 118a

Appendix D(2)—United States Statute (Fifty-First

Congress, Sess. I, Ch. 1132, Act of September 30,

er WN Sigh pié-rels bibs os bee weess 123a

Appendix D(3)—United States Statute (Public

Laws—Ch. 707, Act of August 14, 1950) ........ 124a

Appendix D(4)—United States Statute (101st

Congress, 22 Sess., Settlement Act of 1990) ..... 128a

Appendix E(1)—New York State Statute (Art. 8,

Sections 1790-1799, Public Authorities Law, 1969)141a

Appendix F(1)—Congressional Record, May 4,

TCC cee ep hie bk bess ee ccbsrenvscvees 152a

Appendix F(2)—Congressioual Record, February

OS ra 156a

Appendix F(3)—Letter From the Secretary of the

Interior (Washington, D.C. September 24, 1914). .241la

Appendix F(4)—Memorial of the Council of The

Semece Nation Of Indians .............cc0cee0. 294a

Appendix F(5)—House of Representatives Report

EE 296a

Appendix F(6)—Resolutions of the Legislature of

aL ia ens e sce beseressscnce 309a

Appendix F(7)—Protest of the President Councilors

and People of the Seneca Nation of Indians...... 3lla

Appendix F(8)—Letter from the Secretary of the

Interior (Washington, D.C., February 20, 1874)...314a

iv.

Page

Appendix F(9)—Congressional §Record—House

PETC ee Pee PT CET TOIT Cree Toe rs 320a

Se oa es deel weak Co wie ChE a een 324a

Appendix F(9-b)—Congressional Record—House—

(1877) Seneca Nation of New York Indians....... 326a

Appendix F(9-c)—Congressional Record—House—

(1877) Cattaraugus and Allegany Indian

EE TS he eee eee re eee 330a

Appendix F(10)—House of Representatives Report

ry re ee Ce re ee ree 332a

Appendix F(11)—Senate Report No. 1680 ......... 342a

Appendix F(12)—House of Representatives Report

Se I sok CREw Raa OH EONS AA MOSS Kote kne ves 35la

Appendix F(13)—Letter from the Secretary of the

Interior (Washington, D.C., February 1, 1895)... .358a

Appendix F(14)—House of Representatives Report

PEE Scibaucwewkes Wake ce shen ode se Gas we 374a

Appendix F(15)—Congressional Record—House,

a od a eee 378a

Appendix F(16)—Senate Report No. 2105 ......... 42la

Appendix F(17)—Congressional Record—House,

Pe CT EET CRTC ETE CCR Te 428a

Appendix F(17-a)—Congressional Record—Senate

EE 6 V5 65 HG Kha Tee ee sg nde baxkers 449a

Appendix G(1)—99 Year Lease Exemplar (1892-

DCN ice bid RA eae aa ee been tens cues 452a

Appendix G(2)—99 Year Lease Exemplar (1940’s +) 455a

Appendix G(3)—50 Year Lease Exemplar.......... 465a

Appendix G(4)—‘'25 Year Lease to Member of

en roe ee 474a

Appendix G(5)—12 Year Lease Exemplar (pre-1892). 482a

Appendix G(6)—Proposed 40/40 Lease Offered to

Plaintiffs, September 4, 1990.................. 486a

Page

Appendix G(7)—Agreement Between Seneca Nation

and City of Salamanca Executed July 12, 1990...517a

Appendix G(8)—Joint Leasing Commission

Agreement Between Seneca Nation and City of

Salamanca Executed July 13, 1990............. 536a

Appendix G(9)—Salamanca Indian Lease Authority

Authorization Form Executed by Lessees,

BE ob soe ki ren een 4s éeeune 547a

Appendix G(10)—Revocation of Salamanca Indian

Lease Authority Authorization Executed by

Lessees, November 2, 1990.................... 549a

Appendix G(11)—Salamanca Indian Lease Authority

Response to Revocation Letters, November 14,

Appendix G(12)—Plaintiffs Renewal Letters to

Seneca Nation, November 2, 1990.............. 553a

Appendix G(13)—Seneca Nation Response _ to

Renewal Letter, November 9, 1990 ............. 560a

Appendix G(14)—Petitioners’ Letter Seeking

Negotiations of New Lease, February 7, 1991... .566a

Appendix G(15)—Seneca Nation’s Response _ to

Petitioners’ February 7, 1991 Letter............ 568a

Appendix G(16)—Petitioners’ Letter Demanding

Negotiations and/or Arbitration and Tendering

eg ee ere ra 572a

Appendix G(17)—Seneca Nation’s Response _ to

Petitioners’ February 19, 1991 Letter........... 574a

Appendix G(18-a)—Affidavit of Jennifer A. Coleman

Rumbas Wemrmery OG, BGG) 2... cc ccc eee wwenncas 576a

Appendix G(18-b)—Affidavit of Dean R. Kilbourne

ree 584a

Appendix H(1):

I 66-6540 64 Avid shen bh bak eae eee 598a

Article , DEPP CCP ETE e PeP eT ree errr 598a

vi.

Page

ek ius hy date e040 a8 6 cen ee ew ee 598a

es Se Vie eet aed eweeesa ec eee as 599a

ree ee eee re eee oY 599a

Rule 19. Joinder of Persons Needed for Just

ec ws kev e Ou ce es Obes run eae 600a

Sera ere a 60la

Se Eee Terre rrr 602a

APPENDIX Ail)

Decision of the United States Court of Appeals

for the Second Circuit Affirming Judgment of

the United States District Court for the

Western District of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1300—August Term 1990

(Argued February 19,1991 Decided MAR 15 1991)

Docket No. 91-7086

JOSEPH FLUENT, Individually and as a representative

of the Class of Salamanca Lessees holding 99year

leases from Seneca Nation of Indians; JAMES V.

MONGILLO, Individually and as a representative of

the class of Salamanca lessees holding 50-year leases

from the Seneca Nation of Indians and KEITH

MCCLAIN, Individually and as a representative of the

class of congressional village lessees holding 99-year

leases from the Seneca Nation of Indians; ROBERT

ADAMIC, Individually and on behalf of the class of

lessees who signed the “40/40 Lease’’ Tendered by the

Seneca Nation of Indians on or about September 4,

1990; MARILYN ADAMIC, Individually and on

behalf of the class of lessees who signed the ‘40/40

Lease’ Tendered by the Seneca Nation of Indians on

or about September 4, 1990; SALAMANCA

COALITION OF UNITED TAXPAYERS, INC.,

Individually and on behalf of its membership,

Plaintiffs-Appellants,

against

SALAMANCA INDIAN LEASE AUTHORITY;

DAVID FRANZ, Individually and as Attorney for the

City of Salamanca Indian Lease Authority; ANTONIO

CARBONE, Individually and Mayor of the City of

Salamanca and also as member of the Salamanca

Indian Lease Authority; CITY OF SALAMANCA;

PATRICK CALLAGHAN, Individually and as

Chairman of the Salamanca Indian Lease Authority;

LINDA RYCHCIK, Individually and as a member of

the Salamanca Indian Lease Authority; HENRY

STEFANSKI, Individually and as a member of the

Salamanca Indian Lease Authority; OWEN K.

PHILLIPS, Individually and as a member of the

Salamanca Indian Lease Authority; DANN COLVIN,

Individually and as a member of the Salamanca Indian

Lease Authority; PAUL TAYLOR; PENNY

BUCKLEY; SENECA NATION OF INDIANS,

Defendants-Appellees.

BEFORE: FEINBERG, TIMBERS and MINER,

Circuit Judges.

Appeal from judgment entered in United States

District Court for the Western District of New York

(Arcara, J.) dismissing, on the ground of sovereign

immunity, claims against the Seneca Nation of Indians

to compel lease renewals and dismissing certain other

claims against all defendants because the Nation is an

indispensable party as to those claims.

Affirmed.

JENNIFER A. COLEMAN, Buffalo,

NY (Iris B. Schifeling,

Damon & Morey, Buffalo,

NY, of counsel), for

Plaintiffs-Appellants.

DOUGLAS B.L. ENDRESON,

Washington, D.C. (Reid,

Peyton. Chambers, Sonosky,

Chambers, Sachse &

Endreson, Washington,

DC, Michael Brady,

Hagerty, Brady, Buffalo,

NY, of counsel), for

Defendant-Appellee Seneca

Nation of Indians.

R. WILLIAM STEPHENS, Buffalo,

NY (David M. Franz,

Raichle, Banning, Weiss &

Stephens, Buffalo, NY, of

counsel), for Defendants-

Appellees other than

Seneca Nation of Indians.

MINER, Circuit Judge:

Plaintiffs-Appellants Salamanca Coalition of United

Taxpayers, Inc. (“SCOUT’’), representing nearly 600

lessees, and five individual lessees (collectively

Appellants’) commenced this action against their

lessors, the Seneca Nation of Indians (‘‘Nation’’), and

against the Salamanca Indian Lease Authority (““SILA”’),

the City of Salamanca (‘‘City’’) and various City officials

to compel the Nation to renew their leases for up to 99

years. Other relief was sought, including a declaration

that the agreement negotiated by SILA, the City and

the Nation for renewal of the leases was null and void.

Thc Appellants also challenged the constitutionality of

the Seneca Nation Settlement Act of 1990, by which

Congress approved the agreement for renewal of the

leases and appropriated $35 million toward the rental

payments. The district court dismissed all claims against

the Nation, finding that the Nation was immune from

suit. It also dismissed two claims against the remaining

defendants on the ground that an adjudication of those

claims in the absence of the Nation would impede the

Nation's ability to protect its interest in the subject of

those claims. We hold that the district court correctly

found that the Nation was immune from suit under the

doctrine of sovereign immunity and properly dismissed

the other two claims against the remaining defendants

under Fed. R. Civ. P. 19.

BACKGROUND

The dispute giving rise to this action involves the

renewal of leases to tribal lands within the City and

outlying villages, known as the Congressional Villages.

The tribal lands were leased by the Nation in the mid-

nineteenth century to various settlers and railroads. The

leases were validated by Congress in the Act of February

19, 1875, ch. 90, 18 Stat. 330 (1875 Act’’). When they

were about to expire, the leases were renewed in

accordance with the terms of the Act, first in 1880 for a

12-year term, then in 1892 for a 99-year term, see Act of

September 30, 1890, ch. 1132, 26 Stat. 558 (1890 Act’’)

{amending the 1875 Act and authorizing 99year renewal

term). The leases subject of this action all expired on

February 19, 1991.’

‘In 1939, many of the leases were cancelled by the Nation for failure

to pay rent. See United States v. Forness, 125 F.2d 928 (2d Cir.), cert.

denied, 316 U.S. 694 (1942). The Nation offered new leases to the

lessees whose leases were cancelled, and those leases, the longest of

which had a term of forty-nine years, also expired on February 19,

1991. Some of the original leases expire at various times from about

2029 and 2034.

SILA was formed in 1969 pursuant to New York

legislation authorizing it to negotiate a master lease with

the Nation for all reservation lands located within the

City and the surrounding villages. N.Y. Pub. Auth. Law

§$1790-99 (McKinney 1981 & Supp. 1991). The Nation

refused to negotiate a master lease, preferring instead to

negotiate individual leases with each lessee. SILA then

sought and received authorization from an overwhelming

majority of lessees, whose leases were about to expire, to

negotiate on their behalf. Over the course of some

twenty years, SILA, the City and the Nation endeavored

to negotiate an agreement to renew the leases. In mid-

July, 1990, the parties signed a renewal agreement

(“‘Agreement”’). That Agreement provided for leases with

a forty-year rental term and a right to renew for an

additional forty years (‘40/40 leases’’). Rents were based

on the fair market value of the land rather than on the

value of the land and the improvements. The Nation

originally had requested rentals based on the value of the

land as improved in light of the “‘unconscionably’’ low

rent it had received during the past 99 years. See United

States v. Forness, 125 F.2d 928, 941 (2d Cir.), cert.

denied, 316 U.S. 694 (1942). One of the conditions of the

Agreement was payment by the federal government and

New York State of monies approximating the difference

between the fair market rental value and the rents

actually received by the Nation over the past 99 years.

Congress enacted the Seneca Nation Settlement Act of

1990, Pub. L. No. 101-503, 104 Stat. 1292 (1990 Act’’),

in which it agreed to pay approximately $35 million.

1990 Act, §6, 104 Stat. at 1295-96. Apparently, New

York State has agreed to pay $25 million, and, according

to the Nation, legislation appropriating that amount is

anticipated shortly. The total annual rental payment due

from the lessees themselves on the new leases was set at

$800,000, to be collected and paid by the City. That

amount is subject to adjustment based on a yearly

reappraisal of individual land values. Each lessee is

responsible for an annual rent equal to eight percent of

land value, if the property is leased for residential

purposes, and ten percent of land value, if the property

is leased for nonresidential purposes.

After reviewing the Agreement and the 40/40 leases,

the Appellants notified the Nation that they were

dissatisfied and would institute a lawsuit. On November

30, 1990, the Appellants commenced this action. In the

-first cause of action in their complaint, they sought a

declaration that they are entitled to a renewal of up to 99

years in accordance with the Acts of 1875 and 1890 and

the terms of their expired leases. They also claimed in

the first cause of action that section 3 of the 1875 Act

and the terms of their expired leases entitle them to

arbitration for a determination of fair rent. In the eighth

cause of action, asserting that SILA lacked authority to

negotiate an agreement for the renewal of leases on their

behalf, the Appellants sought a declaration that the

Agreement was null and void. Additionally, in the tenth

cause of action, the Appellants challenged the

constitutionality of the 1990 Act. The Nation moved to

dismiss all claims against it on the ground of sovereign

immunity and moved to dismiss the eighth and tenth

causes of action against the other defendants on the

_ ground that it was an indispensable party as to those

two causes of action. See Fed. R. Civ. P. 19(b). On

January 25, 1991, the district court granted the motion

and dismissed all claims pleaded against the Nation and

also dismissed the eighth and tenth causes of action set

forth in the complaint.

The district court concluded that the Nation is immune

from suit under the doctrine of sovereign immunity

because the 1875 Act did not waive in unequivocal terms

the Nation’s sovereign immunity. Finding that any

declaration that the Agreement was void would greatly

affect the interests of the Nation as a party to that

Agreement, the court dismissed the eighth cause of

action also. Finally, because the 1990 Act authorizes the

payment of a substantial sum of money to the Nation,

the court found that a constitutiona! challenge to the

1990 Act, the tenth cause of action, could not be

adjudicated in the absence of the Nation without

impairing the Nation’s ability to protect its interest in

the receipt of those funds. The court entered its order as

a final judgment against the Nation under Fed. R. Civ.

P. 54(b) because of the imminent expiration of the leases.

This appeal followed.

DISCUSSION

The Appellants contend that the district court erred by

dismissing the claims against the Nation on the ground

of sovereign immunity, primarily because section 7 of the

1875 Act provides for jurisdiction over claims regarding

the possession of leased property. They point to actions

enumerated by the Act over which the court ‘‘shall have

jurisdiction.’’ Section 7 provides in material part

[that the ... circuit and district courts of the

United States in and for the northern [now western]

district of [New York], shall have jurisdiction of all

actions for the recovery of rents and for the

recovery of possession of any real property within

the limits of said villages, whether actions of debt,

ejectment, or other forms of action, according to the

practice in said courts; and actions of forcible entry

and detainer, or of unlawful detainer arising in said

villages, may be maintained in any of the courts of

said county which have jurisdiction of such actions.

The Appellants interpret this provision as authorizing

actions by both lessors and lessees. Likewise, they point

to section 3 of the Act of 1875, which provides that

persons who are the “owners of improvements erected

upon such lands, shall be entitled to such renewed leases,

and to continue in possession of such lands,’’ to support

their contention that, since lessees are entitled to

possession upon renewal, Congress intended to waive the

Nation’s immunity and to provide a forum for the

resolution of disputes pertaining to possession. We

disagree with Appellants’ construction of the statute.

‘Indian tribes have long been recognized as possessing

the common-law immunity from suit traditionally

enjoyed by sovereign powers.” Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 58 (1978); see Oklahoma Tax

- Comm'n v. Citizen Band Potawatomi Indian Tribe, No.

89-1322 (Feb. 26, 1991) (1991 WL 21371 at *3). However,

tribal sovereignty is subject to Congress’ plenary

control, and thus ‘‘Congress [is] always ... at liberty to

dispense with ... tribal immunity or to limit it.” Id,

1991 WL 21371 at *4; see, e.g., Martinez, 436 U.S. at 58;

United States v. United States Fidelity & Guaranty Co.,

309 U.S. 506, 512 (1940); Turner v. United States, 248

U.S. 354, 358 (1919); John v. City of Salamanca, 845 F.2d

37, 40 (2d Cir.), cert. denied, 488 U.S. 850 (1988). It has

long been the rule that waiver of tribal immunity cannot

be implied but rather must be “unequivocally

expressed.’ Martinez, 436 U.S. at 58-59 (citations

omitted). We agree with the district court that section 7

fails to unambiguously express Congress’ intent to

subject the Nation to lawsuits concerning disputes over

the lease of tribal lands. See United States v. Charles, 23

F. Supp. 346, 348-49 (W.D.N.Y. 1938) (action to set aside

deed held barred by sovereign immunity of the Seneca

Nation of Indians).

Section 7 enumerates actions typically brought by

lessors, including actions for the recovery of rents and of

possession of real property and actions for debt,

ejectment, forcible entry and detainer and unlawful

detainer. Each enumerated action provides a remedy for

the Nation against defaulting lessees. The fact that only

a strained reading of the statute might permit specific

forms of action to be brought by tenants against their

landlords serves to underscore the absence of a clear

expression of a waiver of the kind urged by the

Appellants. Cf., Dellmuth v.-Muth, 109 S. Ct. 2397, 2401

(1989). When Congress has chosen to limit or waive the

sovereign immunity of Indian tribes, it has done so in

clear language. See, e.g., Act of July 22, 1958, Pub. L.

No. 85-547, $1, 72 Stat. 403, 403 (authorizing Navajo

- and Hopi tribes ‘“‘to commence or defend ... an action

against each other’’); Act of December 22, 1974, Pub. L.

No. 85-547, $1, 72 Stat. 403, 403 (authorizing Navajo

or Hopi “‘tribe[ ] is ... hereby authorized to commence

or defend ... an action against the other tribe.’’).

Because a congressional waiver was not ‘‘unequivocally

expressed,’ we may not hold that the statute relied upon

by the Appellants waives the sovereign immunity of the

Nation. See Martinez, 436 U.S. at 58-59.

Regarding the Appellants’ contention that the

legislative history supports their position that Congress

intended to provide a forum for all lease disputes, the

need to resort to legislative history similarly highlights

the deficiency of the Appellants’ position. ‘If Congress’

intention is ‘unmistakably clear in the language of the

statute,’ recourse to legislative history will be unnecessary;

if Congress’ intention is not unmistakably clear, recourse

to legislative history will be futile.” Dellmuth, 109 S. Ct.

at 2401. Nevertheless, we think the legislative history

sh acini carla taccmaaniaineeeeiee

10a

clearly demonstrates that Congress never intended to

waive the immunity of the Nation. The following remarks

of Senator Ingalls, a proponent of the bill, indicate the

basic purpose of the 1875 Act: “[The 1875 Act] simply

proposes that the leases which have been made by these

Indians themselves, by their own consent, shall be

ratified and confirmed, and held to be valid and binding

upon the parties who have voluntarily made these

contracts.’ 3 Cong. Rec. 909-10 (1875). The legislation

was proposed in light of a decision by the New York

State Supreme Court, in which the court found the leases

to be invalid because they were executed without the

authorization of the United States. See Forness, 125 F.2d

at 930-31 & n.1. Thus, the overriding purpose of the 1875

Act as to validate the existing leases voluntarily entered

into between the Nation and the settlers.

Even assuming we were to agree with the Appellants’

contention that the 1875 Act unmistakably and clearly

waives the immunity of the Nation, we would affirm the

district court’s judgment on the ground that the renewal

provisions of 1875 Act applied only to the original

renewals and do not extend to the present renewals.

Section 3 of the 1875 Act validated leases existing at

that time for a five-year term and authorized a term of

renewal ‘‘not exceeding twelve years.’’ The 1875 Act also

provided that ‘“‘whenever any lease shall expire after its

renewal ..., it may, at the option of the lessee, his heirs

or assigns, be renewed in the manner hereinbefore

provided.’ The 1890 Act amended the 1875 Act to allow

renewal for ‘‘a term not exceeding ninety-nine years,

instead of the term of twelve years.’ Thus, the leases

that expired on February 19, 1991 are leases that

previously were renewed a second time for a term of 99

years. The 1875 Act does not authorize a perpetual

renewal, and without clear language to that effect, we

lla

will not construe the statute to confer such a right. See

Winslow v. Baltimore & Ohio R.R. Co., 188 U.S. 646,

654-55 (1903) (plain language necessary to establish

intent to provide right of perpetual renewal); McLean v.

United States, 316 F. Supp. 827, 829 (E.D. Va. 1970)

(“‘[t}he intent to create a perpetual lease must appear in

clear and unequivocal language’’); McMillan v. Malvern

Gravel Co., 136 F. Supp. 567, 574 (W.D. Ark. 1955)

(same); 50 Am. Jur. 2d Landlord & Tenant §1171 (1970).

The Appellants contend that the 1875 Act “stands

ready to resolve this lease dispute in a fair and equitable

way. It provides for renewal and then negotiation or

binding arbitration for the rent and conditions of the

renewal lease.’’ Undoubtedly, the 1875 Act provided for

the validation of leases and for arbitration in the event

the parties could not agree to the terms of the renewal

leases. The Appellants, however, already benefitted from

the renewal and arbitration procedures set forth in the

1875 Act, first in 1880 and then in 1892. That is all the

statute requires.

Nor do the terms of the expired leases provide that the

Nation must accede to the Appellants’ proposals for

renewal. The expired leases allow for the parties to agree

on terms of renewal. The Nation did not agree to a 99

year term of renewal. Instead, it agreed, along with the

City and SILA, which represents about two thousand

lessees, to a forty-year rental term with a forty-year right

to renew. The 40/40 leases provide that disputes

“concerning any party’s compliance with or obligations

under any of the terms’”’ of the lease can be submitted to

arbitration. The new leases satisfy the requirements of

the statute and the expired leases in that they represent

an agreement by the parties.

12a

The Appellants’ contention, that tribal immunity does

not bar federal jurisdiction when no other forum is

available for the resolution of claims, must fail. The lack

of a forum does not automatically prevent dismissal of

the claims asserted. Makah Indian Tribe v. Verity, 910

F.2d 555, 560 (9th Cir. 1990). ‘‘Sovereign immunity may

leave a party with no forum for [that party’s] claims.”’

Id. (citing Lomayaktewa v. Hathaway, 520 F.2d 1324,

1326 (9th Cir. 1975)). The only branch with the ability to

provide a forum for resolution of the issues involved here

is Congress. Without a clear congressional mandate,

however, we cannot grant the relief sought by

Appellants.

The argument that the court erred in dismissing from

the complaint claims in which the Appellants sought a

judicial declaration that the Agreement was null and

void and that the 1990 Act was unconstitutional is

without any merit. The Nation moved to dismiss these

claims (the eighth and tenth causes of action) pleaded

against it and the remaining defendants, pursuant to

Fed. R. Civ. P. 19(b). After engaging in the analysis

required by Fed. R. Civ. P. 19(a), the district court

concluded that any resolution of those particular claims

would, as a practical matter, both impair and impede the

Nation’s ability to protect its interest in the Agreement

and in receipt of funds authorized by the 1990 Act.

There can be no doubt that the Nation qualifies under

rule 19(a) as an indispensable party to these claims. As a

party to an Agreement negotiated for over two decades,

the Nation’s interest in the validity of the lease

agreement is significant. See Crouse-Hinds Co. v.

InterNorth, Inc., 634 F.2d 690, 701 (2d Cir. 1980) (citing

Lomayaktewa, 520 F.2d at 1325 (“[njo procedural

principle is more deeply imbedded in the common law

13a

than that, in an action to set aside a lease or a contract,

all parties who may be affected by the determination of

the action are indispensable’’), cert. denied, 425 U.S. 903

(1976)); McClendon v. United States, 885 F.2d 627, 633

(9th Cir. 1989) (same). Additionally, as the beneficiary of

a substantial sum of money from the federal government,

it is manifest that the Nation has a vital interest in the

constitutionality of the 1990 Act.

After determining that joinder under rule 19a), while

desirable, was not feasible because of the tribe’s

sovereign immunity, the district court considered the

rule 19%b) factors. “[T]he [rlule allows courts ... to

determine the emphasis to be placed on _ each

consideration according to ‘the facts of [the] given case

and in light of the governing equity-and-good-conscience

test.’ ’’ Associated Dry Goods Corp. v. Towers Financial

Corp., 920 F.2d 1121, 1124 (2d Cir. 1990) (quoting 7 C.

Wright & A. Miller, Federal Practice & Procedure $1608,

at 91-92). It has been held that when an indispensable

party is ‘immune from suit, ‘there is very little room for

balancing of other factors’ set out in [rjule 19%(b), because

immunity ‘‘‘may be viewed as one of those interests

‘compelling by themselves.’’’’’ Enterprise Mgmt.

Consultants, Inc. v. United States ex rel. Hodel, 883 F.2d

890, 894 (10th Cir. 1989) (quoting Wichita & Affiliated

Tribes of Oklahoma v. Hodel, 788 F.2d 765, 777 n.13

(D.C. Cir. 1986) (quoting 3A Moore’s Federal Practice

19.15 at 19-266 n.6 (1984)); see Provident Tradesmens

Bank & Trust Co. v. Patterson, 390 U.S. 102, 119 (1968).

The rationale behind the emphasis placed on immunity in

the weighing of rule 19(b) factors is that the case is not

one “‘where some procedural defect such as venue

precludes litigation of the case. Rather, the dismissal

turns on the fact that society has consciously opted to

shield Indian tribes from suit without congressional or

l4a

tribal consent.’’ Wichita, 788 F.2d at 777. After’

recognizing the ‘“‘paramount importance accorded the

doctrine of sovereign immunity under [r]ule 19,’ the

district court found that the eighth and tenth causes of

action should not be adjudicated in the absence of the

Nation. We agree and hold that the district court did not

abuse its discretion in dismissing the eighth and tenth

causes of action.

CONCLUSION

The judgment of the district court dismissing the

claims against the Nation and dismissing the first,

eighth and tenth causes of action of the complaint is

affirmed. Our order of February 14, 1991 directing that

the status quo be maintained pending further order of

the court is rescinded.

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17a

Previous requests for similar relief and disposition:

No previous requests have been made.

Statement of the issue(s) presented by this motion:

Whether the Seneca Nation of Indians is immune

from suit to enforce two Acts of Congress, (the Acts

of 1875 and 1890) and renewal clauses in leases

granted by the Seneca Nation of Indians to

Plaintiffs/Appellants pursuant to those Acts of

Congress?

Whether a challenge to the Constitutionality of the

Settlement Act of 1990 may proceed even if the

Court determines that the Seneca Nation is immune

from suit? (Complaint Count Ten)

* See below

Brief statement of the facts (with page references to the

moving papers):

The leases at issue expire on February 19, 1991.

Although the leases and the Acts of 1875 and 1890

provide for renewal of the leases, the Seneca Nation

refused to renew the leases. Plaintiffs commenced a

class action in the Western District of New York,

inter alia, enforce those renewal provisions. The

Plaintiffs/Appellants claims were dismissed below

upon the decision of the Court that the Seneca

Nation could not be sued because of the doctrine of

sovereign immunity.

* Statement of Issue(s) Cont'd. ;

Whether a challenge to the validity of an Agreement

entered into between the Seneca Nation and the City

of Salamanca may proceed even if the Nation is

immune from suit? (Complaint—Count Eight)

18a

Summary of the argument (with page references to the

moving papers):

Plaintiffs/Appellants will argue that the language

and legislative history of the Acts of 1875 and 1890

clearly limited the Seneca Nations sovereign

immunity with respect to the leasing of its lands in

the City of Salamanca and_= surrounding

Congressional Villages and that the Seneca Nation

is subject to federal court jurisdiction to determine

the lessees’ rights to renewed leases pursuant to the

Acts of 1875 and 1890.

19a

APPENDIX A(3)

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2la

Previous requests for similar relief and disposition:

No previous request for this relief has been made.

No previous relief was has been sought in the

District Court for the reasons set-forth in the

attached Affidavit of Jennifer A. Coleman.

Statement of the issue(s) presented by this motion:

Whether an injunction should issue from this Court

maintaining the status quo vis-a-vis the expiration

of existing 99-year leases which are the subject of

the instant Appeal and an option to accept a new

lease offered by defendant-Appellee Seneca Nation

of Indians, while this Appeal is sub juidice?

Brief Statement of the facts (with page references to the

moving papers):

The 99-year leases at issue will expire by their terms

on February 19, 1991. Jt App. at 26. The option

granted by the Seneca Nation to lessees to accept a

new lease expires on February 19, 1991. Jt. App. at

37. Whether the Plaintiffs have a right to enforce

renewal clauses in their existing leases and in the

Acts of Congress passed in 1875 and 1890, or

whether such an action is barred by the doctrine of

sovereign immunity, is one of the issues to be

decided by the instant Appeal. The Court agreed to

expedite this Appeal by Order dated February 5,

1991. Oral argument is scheduled for February 19,

1991.

Summary of the argument (with page references to the

moving papers):

Without an injunction maintaining the status quo

while this Appeal is sub judice, the rights which

Plaintiffs-Appellants seek to enforce in this action

will expire upon expiration of their leases. If this

Appeal is determined adversely to the Plaintiffs-

Appellants, their only option for a new lease from

the Seneca Nation will have expired while this

Appeal is sub judice.

22a

APPENDIX B(1)

Order to Show Cause of the United States District

Court for the Western District of New York,

December 3, 1990

Order to Show Cause—December 3, 1990

(To Be Supplied With Record

From Second Circuit)

23a

APPENDIX B(2)

Scheduling Order RE: Motion to Dismiss and Motion

for Temporary Restraining Order of the United States

District Court for the Western District of New York,

December 19, 1990

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. Action No.: 90-1229A

JOSEPH FLUENT, et al.,

Plaintiffs,

vs.

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

ORDER

IT IS HEREBY ORDERED, that the plaintiffs shall

submit a brief in opposition to the Seneca Nation’s

motion to dismiss and a separate brief in support of the

plaintiffs’ motion for a temporary restraining order and/or

preliminary injunction as to the defendants other than

the Seneca Nation by service and filing of same on

December 12 10, (RJA) 1990; the defendants shall

respond to the plaintiffs’ briefs by December 17, 1990;

and oral argument on the motions shall be held at 10:00

a.m. on December 20, 1990.

DATED: Buffalo, New York

December J)” 10, 1990

RICHARD J. ARCARA .

Hon. Richard J. Arcara

United States District Judge

24a

APPENDIX B(3)

Order Admitting Seneca Nation Counse! Pro Hac Vice

of the United States District Court for

the Western District of New York,

December 20, 1990

UNtTED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. No.: 90-1229A

JOSEPH FLUENT, et al.,

Plaintiffs,

vs.

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

ORDER

MICHAEL A. BRADY, a member of this Court,

having moved in open Court pursuant to local Rule 3(h),

the admission pro hac vice of Douglas Endreson and

Reid Chambers, and the Court having duly considered

the Motion, it is

ORDERED, that Douglas Endreson -and Reid

Chambers be admitted pro hac vice for the purpose of

representing defendant, SENECA NATION OF

INDIANS, in this matter.

RICHARD J. ARCARA

Entered: December 20, 1990

25a

APPENDIX B(4)

Decision and Order Denying Temporary Restraining

Order of the United States District Court

for the Western District of New York,

January 8, 1991

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. 90-1229A

JOSEPH FLUENT, et al.,

Plaintiffs,

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

~ DECISION AND CRDER

INTRODUCTION

The plaintiffs' in this action have filed a twelve count

complaint against the Seneca Nation of Indians (““SNI’’),

the City of Salamanca (“City”), the Salamanca Indian

Lease Authority (‘““SILA”’),? and various officials of the

‘The plaintiffs consist of five individually named plaintiffs who

represent similarly situated lessees, and an organization known as the

Salamanca Coalition of United Taxpayers, Inc. (“SCOUT’’) that

consists of some 600 lessees. The plaintiffs have brought this suit as

a class action.

? SILA is a public benefit corporation formed by the State of New

York to negotiate and enter into a master lease with the SNI ‘‘for

any and all reservation lands underlying the City of Salamanca).”’

N.Y. Pub. Auth. L. §§1791, 1794. SILA was also given the power to

“confer with lessees of property for the purpose of negotiating

renewals of leases ... .’’ N.Y. Pub. Auth. L. §1794(b).

26a

City and SILA. The plaintiffs are lessees of land owned

by the SNI. Most of those leases (‘‘the 99 year leases’’)

expire on February 19, 1991; the balance (‘‘the 50 year

leases’) expire at various times from about 2026 to 2034.

The plaintiffs moved for a temporary restraining

order/preliminary injunction against SILA and _ its

members that would prevent SILA’s future operation

and any further use by SILA of City funds and

resources. After reviewing the written submissions of the

parties, and hearing oral argument from counsel, the

Court denies plaintiffs’ motion for injunctive relief

against SILA for the reasons stated herein.

FACTS

Over the past several years, the City and SILA have

represented the lessees in negotiations with the SNI

regarding the terms of renewal of the leases. On July 12

and 13, 1990, the SNI and the City executed a renewal

agreement (‘‘the Agreement’’). (See Exhibit J of the

complaint.) The Agreement provided that the SNI would

offer all existing lessees a new lease, with a 40 year term

and a right to renew for 40 additional years. The

Agreement also called for rentals based on land value.

Furthermore, under the Agreement, the offer of the new

40/40 lease, wouid only be effective if: (1) Congress

passed an act to implement the Agreement and pay the

SNI $35 million; and (2) the State agreed to pay the SNI

$25 million. The $60 million in payments represented an

agreed upon difference between the lease rentals actually

received by the SNI for the past 99 years, and fair

market rental for that period.

Subsequently, Congress enacted the required federal

legislation implementing the Agreement, authorizing the

federal payment and providing for the State payment to

27a

be made. President Bush signed the legislation on

November 3, 1990. See Seneca Nation Settlement Act of

1990, Pub. L. No. 101-503 (the “‘Act of 1990’’). The State

has not yet entered into an agreement with the SNI

concerning the schedule and mechanism for payment of

the $25 million which the Act of 1990 provides for. The

State, however, supported the Act of 1990, stated it

would provide the payment and, according to the SNI,

an agreement with the State is anticipated shortly.

On September 4, 1990, the SNI offered the new 40/40

lease to all those persons who could prove that they were

existing lessees. The plaintiffs reviewed the proposed

40/40 lease and were dissatisfied with both the lease and

the representation SILA had provided them during

negotiations with the SNI. :

The plaintiffs have two major points of contention with

the proposed 40/40 lease. First, plaintiffs claim that

under the Congressional Acts of 1875 and 1890, which

authorize the SNI to lease its land, all lessees are

entitled to a 99 year term of renewal. Second, the

plaintiffs claim that the Acts of 1875 and 1890 mandate

a specific procedure, akin to binding arbitration, for

determining rentals and that this procdeure has not been

followed.

On or about November 2, 1990, several hundred lessees

wrote to the SNI asking it to honor their claimed right

to a 99 year renewal of their leases. (See Exhibit C of the

complaint.) The SNI responded by letter dated

November 9, 1990, stating that the SNI would withdraw

the option to accept the 40/40 lease from any lessee who

tried to enforce renewal rights by litigation or

arbitration. (See Exhibit D of the complaint.)

Contemporaneously, several hundred lessees also

tendered a letter to SILA dated November 2, 1990,

revoking formal written authorizations they had

28a

previously given SILA to negotiate on their behalf.’ (See

Exhibit O of the complaint.) SILA acknowledged receipt

of these letters by a letter dated November 14, 1990.

(See Exhibit P of the complaint.) For some unexplained

reason, however, the November 14, 1990 letter also told

those lessees who had revoked SILA’s authorization that

SILA would pass on their names to the SNI as having

rejected the 40/40 lease. The November 2, 1990 letters

revoking SILA’s authorization, however, did not even

mention the 40/40 lease, let alone reject it.

Finally, on November 30, 1990, the plaintiffs brought

this action. At the same time, plaintiffs also sought an

immediate, ex parte temporary restraining order to

prevent the SNI, SILA and the City from withdrawing

the offer of the 40/40 lease from all lessees who had

tendered letters to SILA revoking its authority. The

plaintiffs also sought a temporary restraining order or

preliminary injunction preventing SILA from continuing

its activities.

However, because the Court did not find that

‘immediate and irreparable injury, loss, or damage’’

would result to the plaintiffs before the defendants could

be heard in opposition, the Court denied plaintiffs’

request that the motion for a temporary restraining

* It is important to note that, while the plaintiff/lessees have revoked

SILA’s authorization, SILA claims to continue to represent and

assist approximately 2,000 non-plaintiff/lessees who desire to enter

into the 40/40 lease with the SNI. SILA is assisting these non-

plaintiff/lessees with the ministerial tasks necessary to finalize their

leases. Furthermore, SILA is participating in further negotiations

with both the State of New York and the SNI. (See Item 9, Callaghan

affidavit, filed December 6, 1990, p. 6.)

29a

order be heard ex parte.‘ See Fed. R. Civ. P. 65(b). The

Court issued an order dated December 3, 1990 that set a

return date of December 6, 1990 for the motions for

temporary restraining orders. The order also instructed

plaintiffs to serve all defendants not later than 5:00 p.m.

December 5, 1990. Opposing briefs were submitted by all

defendants. The SNI also filed a motion to dismiss the

action on the ground that: (1) the SNI is immune from

suit because of its governmental status; and (2) the

action cannot proceed in the SNI’s absence because it is

an indispensable party under Rule 19 of the Federal

Rules of Civil Procedure.

Oral argument was then held on December 6, 1990. At

that time, the Court focused on the motion for a

temporary restraining order against the SNI. During oral

argument, counsel for the SNI stated that the initiation

of the instant action had already been treated as a

rejection of the 40/40 lease by the named piaintiffs.

Counsel further stated, however, that the SNI would not

withdraw its offer of the 40/40 lease from the other

members of SCOUT or from other lessees who had

revoked SILA’s authority. In reliance upon this

representation, the counsel for the plaintiffs withdrew

the motion for a temporary restraining order against the

SNI.

‘ The plaintiffs claimed that the motion should be heard ex parte so

as to prevent the SNI from revoking their offer of the 40/40 lease

prior to the Court hearing the motion for the temporary restraining

order. This argument became moot, however, because on the

afternoon of November 30, 1990, while the plaintiffs were asking to

be heard ex parte, a newspaper article appeared in the Buffalo News

in which plaintiffs’ counsel was quoted as saying that plaintiffs were

indeed bringing suit against the SNI in federal court. Thus, the SNI

was already alerted to the fact that plaintiffs had initiated litigation

and, therefore, there was no longer any reason to hear the motion ex

parte.

30a

The Court then issued a scheduling order for briefing

and oral argument on both plaintiffs’ motion for a

temporary restraining order against SILA and defendant

SNI's motion to dismiss. All parties submitted briefs in

support of their respective positions and _ further

argument was held on December 20, 1990. Due to time

constraints, the Court only heard argument on plaintiff's

motion for a temporary restraining order against SILA.°®

DISCUSSION

The plaintiffs have asked that the following temporary

restraining order be issued:

Restraining and enjoining the defendant Salamanca

Indian Lease Authority, the defendant members of

the Salamanca Indian Lease Authority and the

defendant Franz, and each of them, from engaging

in any further activity as the Salamanca Indian

Lease Authority, and further restraining defendants,

and each of them, from using City funds, offices,

letterhead and/or other resources to support or

further the activities of the Salamanca Indian Lease

Authority.

Although the plaintiffs’ motion was denominated as

one for a temporary restraining order, a request that is

traditionally determined without notice to the opposing

party, the Court, in its discretion, ordered notification of

the defendants. In view of the notice and opportunity to

be heard that were afferded to the parties in this action,

the Court considers it appropriate to analyze plaintiffs’

motion for a temporary restraining order under the

standards governing the granting of preliminary

injunctive relief. Levas and Levas v. Village of Antioch,

684 F.2d 446, 443 (7th Cir. 1982); Schiavone Const. Co. v.

*‘ Argument on defendant SNI's motion to dismiss was later held on

January 3, 1991.

3la

New York City Transit Auth., 593 F. Supp. 1257, 1261

n.10 (S.D.N.Y. 1984); 11 Wright & Miller, $2951 pp. 499

500.

The showing required in order to obtain a temporary

restraining order, i.e., irreparable harm and preservation

of the status quo, are subsumed by the more extensive

showing that must precede the granting of a preliminary

injunction. Granny Goose Foods, Inc. v. Teamsters, 415

U.S. 423, 439 (1974). It is well established in the Second

Circuit that a preliminary injunction or other temporary

injunctive relief may be granted only where the plaintiff

establishes (1) irreparable harm (if the requested relief is

denied), and (2) either (a) the likelihood of success on the

merits, or (b) sufficiently serious questions going to the

merits to make them a fair ground for litigation and a

balance of hardships tipping decidedly in plaintiff's

favor. Tucker Anthony Realty Corp. v. Schlesinger, 888

F.2d 969 (2d Cir. 1989); Mattel, Inc. v. Azrak-Hamway

Intern., Inc., 724 F.2d 357, 359 (2d Cir. 1983); Jackson

Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72

(2d Cir. 1979). While this established standard for

preliminary injunctive relief does not explicitly mention

the ‘‘public interest’’, the Second Circuit has recognized

that a federal court, when acting as a court of equity,

‘“‘may go much further both to give or to withhold relief

in furtherance of the public interest than where only

private interests are involved.’ Standard & Poor’s Corp.

v. Commodity Exch., 683 F.3d 704, 711 (2d Cir. 1982)

(quoting Brown & Williamson Tobacco Corp. v. Engman,

527 F.2d 1115, 1121 (2d Cir. 1975), cert. denied, 426 U.S.

911 (1976)).

In this case, the Court finds that plaintiffs have failed

to satisfy of the Second Circuit’s two part test for

granting a preliminary injunction. First, plaintiffs have

32a

failed to show that they will suffer irreparable harm if

the injunction is not granted. Second, the plaintiffs have

failed to show either a likelihood of success on the merits

or a balance of hardships tipping decidedly in their favor.

Furthermore, the Court finds that the granting of the

requested relief against SILA would be contrary to the

public interest and could cause irreprable harm to those

other lessees who are depending on SILA to perform the

ministerial duties necessary in order for them to enter

into their new leases with the SNI.

THE FIRST PRONG: IRREPARABLE HARM

The Second Circuit has held that:

To establish irreparable harm, plaintiffs must

demonstrate ‘‘an injury that is neither remote nor

speculative, but actual and imminent.”’ The injury

must be one requiring a remedy of more than mere

money damages. A monetary loss will not suffice

unless the movant provides evidence of damage that

cannot be rectified by financial compensation.

Tucker Anthony Realty Corp., 888 F.2d at 975 (citations

omitted). “‘[A] finding of irreparable harm is an absolute

prerequisite to the issuance of an injunction '

Fireman's Fund Ins. Co. v. Leslie & Elliott Co., 867 F.2d

150, 151 (2d Cir. 1989) (emphasis added).

In this case, the plaintiffs have set forth three

arguments as to how they will be irreparably harmed if

SILA is allowed to continue its activities. First,

plaintiffs argue that they will suffer irreparable injury if

SILA continues to deplete city resources. Second,

plaintiffs argue that SILA is an unauthorized agency

operating in vioiation of the New York State

Constitution and that these constitutional violations

constitute per se irreparable harm. Third, the plaintiffs

argue that they have good reason to believe, based on

33a

SILA'’s past behavior, that SILA will take actions in the

future that will irreparably harm their ability to renew

their leases.

While each of these arguments appear different, they

are all based on a single underlying argument: that SILA

has no authority under the law to either operate or even

exist. Plaintiffs fail to show, however, how this fact, if

true, would cause them irreparable harm.

Plaintiffs’ main argument is that SILA has no valid,

legal authority to either operate or exist. Plaintiffs claim

that SILA, in the past, has based its authority on three

different sources: (1) N.Y. Pub. Auth. L. §5 1791 et segq.;

(2) agency law; and (3) its position as a City agency.

Plaintiffs argue, however, that these sources either no

longer exist or never existed in the first instance. First,

plaintiffs claim that the New York State statute that

created SILA, N.Y. Pub. Auth. L. §§1791 et seq., is both

unconstitutional and superseded by federal law. They

claim that the statute is unconstitutional because it

intrudes on Congress’ exclusive jurisdiction in matters

dealing with native american indian tribes. Plaintiffs also

argue that the statute has been superseded by the

Federal Non-Intercourse Act, 25 U.S.C. $177, and the

Congressional Acts of 1875 and 1890. Second, plaintiffs

argue that SILA lost all of its agency authority when the

lessees revoked their prior authorizations. Finally,

plaintiffs assert that SILA is not now, nor has it ever

been, an authorized City agency. Thus, plaintiffs argue,

SILA has no authority, whatsoever, to either operate or

exist.

Even if the Court assumes, for the sake of argument,

that SILA has no authority, the plaintiffs have failed to

demonstrate how this fact, by itself, would cause them

irreparable harm. Plaintiffs have been unable to show

34a

what future activities of SILA will irreparably harm

them. Plaintiffs stated in their brief, and at oral

argument, that they have a good faith reason to believe,

based on SILA’s past behavior, that SILA will take

actions in the future that will irreparably harm them.

While the Court can certainly understand and

sympathize with the plaintiffs’ anger over some of

SILA’s past conduct, such as SILA’s unauthorized

rejection of the 40/40 lease on behalf of those lessees who

revoked SILA’s authorization and SILA’s recalcitrance

in providing the lessees with requested information, the

Court cannot issue a preliminary injunction based on

past harm. See Buckingham Corp. v. Karp, (illegible)

F.2d 257, 262 (2d Cir. 1985) (‘The linchpin of such

interim relief is that threatened irreparable harm will be

prevented by the injunction.’’).

Furthermore, SILA has acknowledged in both its

November 14, 1990 letter and in open court that it no

longer represents those plaintiff/lessees who have

revoked their authorizations. Thus, there does not appear

to be an actual and imminent threat that SILA will harm

the plaintiffs through any future misconduct.

Plaintiffs argue, however, that SILA’s future activities

in finalizing the 40/40 leases for other lessees, and in

negotiating other aspects of the Agreement with the SNI

will irreparably harm them. Specifically, plaintiffs’

counsel, during oral arguments, pointed to paragraph 10

of the affidavit of Patrick Callaghan, Chairman of SILA.

(See Item 9, Callaghan Affidavit, filed December 6, 1990,

p. 6). In that paragraph Mr. Callaghan states the

following:

10. The work of the SILA and lease committees of

SILA is not at an end. We represent 2000 or more

lessees who have not litigated against the lease

35a

proposal and by virtue of the lease negotiations, we

have committed to do a great number of things to

bring the least proposal in fruition to wit:

(a) The lessee agreeable to the proposed lease

must be processed through to an executed lease.

This process is under way and involves confirming

lease status, descriptions of land, and submission

of such information to the SNI.

(b) The SILA is working on projects with the

state of New York, the federal government and

the county of Cattaraugus to provide financial

and other aid to Salamanca in order to fulfill the

requisites of the lease package.

preparation to accommodate the agreed upon

lease settlement to the existing law.

(d) the city and SILA have agreed to provide

SNI with electric power (for which the SNI will

pay) to their adjoining community. The City and

SILA have also agreed to attempt to effect a city

boundary change to encompass properties totally

owed by SNI.

(e) The SILA is the only contact the SNI has

with city people to effect the changes required to

completely implement the agreed upon lease

settlement terms.

Plaintiffs claim that SILA’s performance of these

tasks will irreparably harm them. At the same time,

however, plaintiffs counsel admitted, at oral argument,

that it is extremely important that these tasks be carried

out, not only to secure the interests of lessees who have

not joined the litigation, but to keep open the option of

the 40/40 lease for the plaintiffs in case this litigation

fails. Instead, plaintiffs assert that it should be the City,

rather than SILA, performing these tasks. Thus,

plaintiffs’ argument is not that the future activities

36a

planned by SILA will irreparably harm them, it is the

fact that SILA has no authority to perform these

activities that will cause them irreparable injury.

The Court fails to see, however, how the plaintiffs will

be irreparably harmed by the fact that SILA, rather

than the City, will be performing these activities.

Plaintiffs admit that the activities listed by Mr.

Callaghan in his affidavit should and must be

accomplished in order to protect the interests of ail

lessees. It is clear to the Court that it would make no

practical difference whether it is SILA or the City that

accomplishes these tasks. If anything, SILA is in a far

better position than the City, at this late date, to

accomplish these necessary activities.‘ Furthermore, the

City funds and resources that SILA will use to

accomplish these activities would still be used even if it

were the City performing the activities rather than

SILA. Thus, the Court finds that the plaintiffs have

failed to show how they will suffer irreparable harm if

SILA is allowed to continue its activities.

THE SECOND PRONG

The second prong of the Second Circuit's two-prong

preliminary injunction test is whether the plaintiff can

establish either ‘‘(a) the likelihood of success on the

merits, or (b) sufficiently serious questions going to the

merits to make them a fair ground for litigation and a

balance of hardships tipping decidedly in plaintiff's

* When asked at oral argument who the City would get to accomplish

the activities that SILA is currently performing, if the preliminary

injunction motion were granted, the City’s attorney responded that

the City would use the same people who are currently members of

SILA. This only makes sense. The members of SILA are the ones

most familiar with the Agreement and the activities that need to be

done to finalize the 40/40 leases.

37a

favor.’’ Tucker Anthony Realty Corp., 888 F.2d at 972

(citations omitted) (emphasis added). In this case,

plaintiffs have failed to demonstrate either a likelihood of

success on the merits or a balance of hardships tipping

decidedly in their favor.

LIKELIHOOD OF SUCCESS

ON THE MERITS

In Abdul Wali v. Coughlin, 754 F.2d 1015 (2d Cir.

1985), the Second Circuit stated that, in general, ‘‘[a]

movant seeking to [show a likelihood of success on the

merits] need not show that success is an absolute

certainty. He need only make a showing that the

probability of his prevailing is better than fifty percent.

There may remain considerable room for doubt.”’ Jd. at

1025. The court further stated, however, that when the

grant of injunctive relief will change the positions of the

parties as it existed prior to the grant or, in other words,

when it will change the status quo ante, the “injunction

is often deemed mandatory, rather than prohibitory, and

a greater showing is required by the moving party.” Jd.

(citations omitted). In these circumstances, the

injunction should issue ‘‘only upon a clear showing that

the moving party is entitled to the relief requested or

where extreme or very serious damage will result from

denial of preliminary relief.” Jd. Finally, the court

concluded that a district court should show ‘“‘greater

reluctance to issue a mandatory injunction than a

prohibitory injunction.” Jd.

It is clear that in the instant case, any injunction

against SILA would change the status quo. SILA is

currently performing those activities that the plaintiffs

want the Court to enjoin. Furthermore, non-

plaintiff/lessees, the City and the SNI are all depending

38a

on SILA to continue its activities. Thus, the Court finds

that the requested relief is ‘‘mandatory” as opposed to

‘“prohibitory.”’

Because the requested relief is ‘‘mandatory,’’ the

plaintiffs must make a ‘‘clear showing’’ that they are

entitled to the relief requested or that “extreme or very

serious damage will result’ if the Court denies their

motion for a preliminary injunction. Jd. the Court finds

that the plaintiffs have failed to make such a showing.

As stated earlier, the plaintiff's main contention

against SILA is that it has no authority under the law to

either operate or exist. Plaintiffs have failed, however, to

make a ‘‘clear showing”’ that they are likely to succeed

on the merits of this argument. At this time, the Court

cannot find that the New York statute that created

SILA, N.Y. Pub. Auth. L. §$§1791 et segq., is “‘clearly”’

unconstitutional. Nor, can the Court find that SILA

totally lacks any authority under the common law of

agency. As stated earlier, SILA claims to represent some

2,000 lessees who have not revoked their authorizations

for SILA to represent them. Thus, plaintiffs have failed

to make a ‘“‘clear showing” that SILA has no authority

under agency law to continue its activities.

Furthermore, the plaintiffs have been unable to show

that ‘extreme or very serious damage will result from a

denial of preliminary relief.” Jd. As stated earlier, the

plaintiffs have been unable to show that they will suffer

any harm as a result of SILA’s continued activities.

In sum, the Court finds that the plaintiffs have failed

to meet their burden of showing a likelihood of success

on the merits as articulated by the Second Circuit in

Abdul Wali.

cecal

39a

FAIR GROUND FOR LITIGATION AND BALANCE

OF HARDSHIPS TIPPING DECIDEDLY IN

FAVOR OF THE PLAINTIFFS

While the plaintiffs have failed to show a likelihood of

success on the merits, there can be no doubt that there

are sufficiently serious questions going to the merits to

make them a fair ground for litigation. In order to

succeed on this prong of the preliminary injunction test,

however, the plaintiffs must also show that the balance

of hardships tips decidedly in their favor. See Tucker

Anthony Realty Corp., 888 F.2d at 972. The Court finds

that the plaintiffs have been unable to meet this burden.

First, the plaintiffs have not established what

hardships they will suffer if SILA is allowed to continue

its activities. Plaintiffs have admitted that the activities

that SILA is performing are necessary to keep the 40/40

lease option open for both themselves and the non-

plaintiff lessees, and that they want these activities to

continue. Their only argument is that the City, rather

than SILA, should be the entity performiug these

activities. As stated earlier, however, the plaintiff's have

not demonstrated to the Court how they are caused

hardship by the fact that SILA, rather than the City, is

accomplishing these activities.

Second, the Court must look at the hardships that

other parties might suffer if the injunction is granted.

Plaintiffs argue that SILA will not suffer any harm if

the preliminary injunction is granted. Plaintiffs, however,

focus only on the hardship that SILA, itself, would

suffer. The Court, on the other hand, must also take into

account the fact that SILA represents other non-

plaintiff/lessees.

40a

The possible hardships that the non-plaintiff/lessees

could suffer, if the motion for a preliminary injunction is

granted, are substantial. These non-plaintiff/lessees, are

depending upon SILA to assist them in finalizing their

40/40 leases with the SNI. If SILA is prevented from

continuing to assist these lessees, they will virtually

have nowhere else to turn. By the time they can locate

other legal assistance, assuming they can afford it, the

February 19, 1991 expiration date would be upon them.

Furthermore, the Court must also examine the possible

hardships that the other defendants in this action might

suffer if the preliminary injunction is granted. Certainly,

both the City and the SNI would suffer substantial

hardships if SILA is prevented from continuing its

activities in finalizing the 40/40 leases for the non-

plaintiff lessees and assisting in negotiations between the

State, the City, and the SNI. Both the City and the SNI

are depending on resolution of this matter for the

security of their economic futures. Thus, any disruption

of SILA’s activities at this point could put the economic

future of the entire community at risk.

Thus, the Court finds that the balance of hardship

does not tip decidedly in plaintiffs’ favor. On the

contrary, the Court finds that the balance of hardships

tips decidedly in favor of not granting the preliminary

injunction.

PUBLIC INTEREST

As stated earlier, one of the factors the Court may

consider when determining whether to issue a

preliminary injunction is the ‘public interest.’ See

Standard & Poor’s Corp., 683 F.2d at 711. In this case,

the ‘‘public interest’’ factor is extremely important.

SILA purports to represent approximately 2,000 lessees |

4la

who are not part of this litigation. The Court must take

into account the effect that any injunction against SILA

would have upen the interests of these lessees. To enjoin

SILA from assisting these lessees in finalizing their

leases would create tremendous anxiety and uncertainty,

not only on the part of the lessees, but also for the

community as a whole, including the SNI.

Furthermore, the Court takes notice of the Congress’

findings in the Seneca Nation Settlement Act of 1990:

(1) Disputes concerning leases of tribal lands within

the City of Salamanca and the congressional

villages, New York, have strained relations between

the Indian and non-Indian communities and have

resulted in adverse economic impacts affecting both

communities.

* * * *

(4) The approaching expiration of the Salamanca

and Congressional village leases on February 19,

1991 has created significant uncertainty and concern

on the part of the City of Salamanca and Salamanca

residents and among the residents of the

congressional villages, many of whose families have

resided on leased lands for generations.

(5) The future economic success of the Seneca

Nation, city and congressional villages is tied to the

securing of a future lease agreement.

Accordingly, the Court realizes how important it is for

this issue to be resolved. The futures of the lessees, the

SNI and the entire community of the City of Salamanca

are at stake here. Thus, the Court is reluctant to enjoin

SILA from continuing with its activities in helping to

resolve this matter.

42a

This is not to say, however, that the plaintiffs should

not pursue their legal rights if they so desire. The Court

certainly empathizes with the plaintiffs’ frustration,

anxiety, and fear of losing their homes and businesses. It

is quite evident that the plaintiffs feel that SILA did not

adequately represent their interests when negotiating

with the SNI. They are dissatisfied with the 40/40 lease

and believe they are entitled to a 99 year lease with

rentals set by binding arbitration. However, if the Court

prevents SILA from doing what is necessary to keep the

40/40 lease option open for the plaintiffs, the City, and

non-plaintiff/lessees, and the plaintiffs fail in this

litigation, the whole situation will be one of complete

chaos. Thus, the Court finds that, at this late date, any

injunction against SILA would not be in the “public

interest’”’ and could cause irreparable harm to all

concerned parties.

CONCLUSION

For the reasons stated, the Court denies plaintiffs’

motion for a preliminary injunction.

SO ORDERED.

RICHARD J. ARCARA

Richard J. Arcara

United States District Judge

DATED: January 8, 1991

43a

APPENDIX B(5)

Certification Order to New York State of

the United States District Court for the

Western District of New York,

January 9, 1991

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. 90-1229A

JOSEPH FLUENT, et al.,

Plaintiffs,

Vv.

SALAMANCA INDIAN LEASE AUTHORITY, et al.

Defendants.

CERTIFICATION ORDER

Pursuant to 28 U.S.C. §2403(b), this Order certifies

that the above referenced action filed in this Court

November 30, 1990, draws into question the

constitutionality of a New York State statute, N.Y. Pub.

Auth. L., Art. 8, §§1790 et seg. Among the reasons

plaintiff allege that the aforementioned law is

unconstitutional are: (1) the State of New York by the

Supreme Court for Cattaraugus County, in or about the

early 1870's, ruled that the State of New York has no

authority whatsoever with respect to confirming or

authorizing leases by and between the Seneca Nation and

persons residing on the Allegany or Cattaraugus

reservations; (2) the New York State Public Authorities

Law is superseded by numerous federal statutes

including: the Act of 1875, the Act of 1890, the Act of

44a

1950 and the Non-Intercourse Act, 28 U.S.C. §177; and

(3) the United States Constitution confers exclusive

power on Congress to deal with indian land affairs.

A copy of the complaint in this action has been

furnished by the plaintiff to Mr. Peter Sullivan, Esq.,

Assistant Attorney General for the State of New York.

Any motion to intervene on behalf of the State of New

York should be filed with the Clerk of Court within 30

days of the date of this order.

SO ORDERED.

RICHARD J. ARCARA

Richard J. Arcara

United States District Judge

DATED: January 8, 1991

To: Hon. Robert Abrams, Attorney General

State of New York Department of law

State Capitol, Room 221

Albany, NY 12224

Peter Sullivan, Assistant Attorney General

State of New York Department of Law

68 Court Street

Buffalo, NY 14202

45a

APPENDIX Bé6)

Certification Order to United States of

the United States District Court for the

Western District of New York,

January 9, 1991

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. 90-1229A

JOSEPH FLUENT, et al.,

Plaintiffs,

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

CERTIFICATION ORDER

Pursuant to 28 U.S.C. §2403(a), this Order certifies that

the above-referenced action, filed in this Court November

30, 1990, draws into question the constitutionality of a

United States statute, the Seneca Nation Settlement Act

of 1990, Pub. L. No. 101-503. AMong the reasons

plaintiffs allege that the Settlement Act of 1990 is

unconstitutional are: (1) insofar as the federal statute

purports to require the State of New York to tax and

spend for a specified purpose, i.e., $25,000,000 restitution

to the Seneca Nation, it violates the State of New York’s

inherent autonomy with respect to taxation, as reserved

to the State of New York by the Tenth Amendment of

the United States Constitution; (2) the statute violates

the taxing and spending clause of the United States

Constitution insofar as the due process clauses of the

Fifth and Fourteenth Amendments are. express

46a

limitations on the power of Congress to tax and spend

and plaintiffs allege that the Settlement Act of 1990

would result in a violation of their due process rights; (3)

the taxing and spending clause of the United States

Constitution is violated insofar as the Settlement Act of

1990 authorizes the appropriation and the expenditure of

federal money for a local purpose and not the general

welfare of the United States; and (4) the Settlement Act

of 1990 is unconstitutional insofar as it relies on the

agreement executed in July, 1990 between the City of

Salamanca and the Seneca Nation of Indians and related

documents, all of which plaintiffs allege are null and void

for the reasons set forth in the complaint.

A copy of the complaint has been forwarded by the

plaintiffs to the United States Attorney for the Western

District of New York. Any motion to intervene on behalf

of the United States should be filed with the Clerk of

Court within 30 days of the date of this order.

SO ORDERED.

RICHARD J. ARCARA

Richard J. Arcara

United States District Judge

DATED: January 8, 1991

To:

Hon. Dick Thornburgh, Attorney General

United States Department of Justice

Room 5111 Tenth and Constitution Avenue NW

Washington, D.C. 20530

Hon. Dennis C. Vacco

United States Attorney

Assistant United States Attorney

5th Floor U.S. Courthouse

Buffalo, New York 14202

47a

APPENDIX B(7)

Order Withdrawing Temporary Restraining Motion

as Against the Seneca Nation of the United

States District Court for the Western

District of New York,

January 9, 1991

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. 90-1229A

JOSEPH FLUENT, et al.,

Plaintiffs,

SALAMANCA INDIAN LEASE AUTHORITY, ET AL.,

Defendants.

SIR/MADAM: Take NOTICE of an ORDER, of

which the within is a copy, duly granted in the above

entitled action on the 8th day of January, 1991, and

entered in the Office of the United States District Court,

Western District of New York, on the 9th of January,

1991.

Dated: Buffalo, N.Y.

January 10, 1991

MICHAEL J. KAPLAN, Clerk

United States District Court

Western District of New York

United States Courthouse

Buffalo, N.Y. 14202

cc: Jennifer A. Coleman, Esq.

Douglas B.L. Endreson, Esq. &

Reid Peyton Chambers, Esq.

Michael A. Brady, Esq.

David M. Franz, Esq.

R. William Stephens, Esq.

48a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. No.: 90-1229A

JOSEPH FLUENT, Ind. and as Representative of the

Class of Salamanca Leasees Holding 99-year Leases from

the Seneca Nation cf Indians, et al.,

Plaintiffs,

vs.

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

ORDER

Upon plaintiffs’ Agreement to withdraw their Motion

dated December 3, 1990 for a Temporary Restraining

Order and/or Preliminary Injunction against the Seneca

Nation of Indians, seeking an Order requiring the Seneca

Nation of Indians to keep open until February 19, 1991,

the offer of a new lease extended by the Seneca Nation of

Indians to the plaintiffs, it is hereby

ORDERED, that the Motion is withdrawn.

DATED: Buffalo, New York

January A 8, 1991

RICHARD J. ARCARA

Hon. Richard J. Arcara

ENTERED:

492

APPENDIX B(8)

Decision and Order Granting Motion to Dismiss

of the United States District Court for

the Western District of New York,

January 25, 1991

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. 90-1229A

JOSEPH FLUENT, et al.,

Plaintiffs,

Vv.

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

DECISION AND ORDER

INTRODUCTION

The plaintiffs' in this action have filed a twelve count

complaint against the Seneca Nation of Indians (““SNI’’),

the City of Salamanca (‘‘City’’), the Salamanca Indian

Lease Authority (‘‘SILA”’),? and various officials of the

'The plaintiffs consist of five individually named plaintiffs who

represent similarly situated lessees, and an organization known as the

Salamanca Coalition of United Taxpayers, Inc. (“SCOUT”) that

consists of some 600 lessees. The plaintiffs have brought this suit as

a class action.

? SILA is a public benefit corporation formed by the State of New

York to negotiate and enter into a master lease with the SNI ‘‘for

any and all reservation lands underlying the City of Salamanca).”

N.Y. Pub. Auth. L. §§1791, 1794. SILA was also given the power to

“confer with lessees of property for the purpose of negotiating

renewals of leases ... .’’ N.Y. Pub. Auth. L. §1794(b).

50a

City and SILA. The plaintiffs are lessees of land owned

by the SNI. Most of those leases (“the 99 year leases’)

expire on February 19, 1991; the balance (‘‘the 50 year

leases’) expire at various times from about 2026 to 2034.

The SNI has moved to dismiss the action on the

grounds that: (1) the SNI is immune from suit because of

its governmental status; and (2) the action cannot

proceed in the SNI’s absence because it is an

indispensable party under Fed. R. Civ. P. 19.°

Plaintiffs argue that Congress expressly waived the

SNI’s sovereign immunity in Section 7 of the Act of

1875.‘ In the alternative, plaintiffs argue that, even if

the Court were to dismiss the SNI, the entire action,

with exception of the First cause of action, should be

allowed to continue against the non-SNI defendants.

After reviewing the written submissions of the parties

and hearing oral argument from counsel, the Court

grants the SNI’s motion to dismiss. The Court also

dismisses the First, Eighth and Tenth causes of action,

with respect to all defendants, for failure to join an

indispensable party pursuant to Fed. R. Civ. P. 19(b).

FACTS

Over the past several years, the City and SILA have

represented the lessees in negotiations with the SNI

regarding the terms of renewal of the leases. On July 12

and 13, 1990, the SNI and the City executed a renewal

agreement (“the Agreement’). (See Exhibit J of the

complaint.) The Agreement provided that the SNI would

’ The other defendants joined in the SNI’s Rule 19 motion during oral

argument on January 3, 1991.

‘ The plaintiffs argued in their brief that Section 9 of the Act of 1990

also waived the SNI’s immunity. Plaintiffs withdrew this argument,

however, during oral argument on January 3, 1991.

5la

offer all existing lessees a new lease, with a 40 year term

and a right to renew for 40 additional years. The

Agreement also called for rentals based on land value.

Furthermore, under the Agreement, the offer of the new

40/40 lease, would only be effective if: (1) Congress

passed an act to implement the Agreement and pay the

SNI $35 million; and (2) the State agreed to pay the SNI

$25 million. The $60 million in payments represented an

agreed upon difference between the lease rentals actually

received by the SNI for the past 99 years, and fair

market rental for that period.

Subsequently, Congress enacted the required federal

legislation implementing the Agreement, authorizing the

federal payment and providing for the State payment to

be made. President Bush signed the legislation on

November 3, 1990. See Seneca Nation Settlement Act of

1990, Pub. L. No. 101-503 (the ‘‘Act of 1990’’). The State

has not yet entered into an agreement with the SNI

concerning the schedule and mechanism for payment of

the $25 million which the Act of 1990 provides for. The

State, however, supported the Act of 1990, stated it

would provide the payment and, according to the SNI,

an agreement with the State is anticipated shortly.

On September 4, 1990, the SNI offered the new 40/40

lease to all those persons who could prove that they were

existing lessees. The plaintiffs reviewed the proposed

40/40 lease and were dissatisfied with its terms.

The plaintiffs have two major points of contention with

the proposed 40/40 lease. First, plaintiffs claim that

under the Congressionai Acts of 1875 and 1890, which

authorize the SNI to lease its land, all lessees are

entitled to a 99 year term of renewal. Second, the

plaintiffs claim that the Acts of 1875 and 1890 mandate

52a

a specific procedure, akin to binding arbitration, for

determining ren‘als and that this procedure has not been

followed.

On or about November 2, 1990, several hundred lessees

wrote to the SNI asking it to honor their claimed right

to a 99 year renewal of their leases. (See Exhibit C of the

complaint.) The SNI responded by letter dated

November 9, 1990, stating that the SNI would withdraw

the option to accept the 40/40 lease from any lessee who

tried to enforce renewal rights by litigation or

arbitration. (See Exhibit D of the complaint.)

Finally, on November 30, 1990, the plaintiffs brought

this action. The complaint alleges twelve separate causes

of action. Only the First, Eighth and Tenth causes of

action, however, conceivably affect the SNI.°

In the First cause of action, plaintiffs ask for a

declaratory judgment that the Acts of 1875 and 1890,

and their current 99 year leases, grant them a right to a

term of renewal of 99 years, with rent and conditions to

be fixed by a procedure provided for in the Act of 1875.

The Eighth cause of action asks for a declaratory

judgment that the Agreement is null and void because:

(1) it violates both the New York State and United

States Constitutions; and (2) because the City had no

authority, under law, to sign the Agreement. The Tenth

cause of action asks for a declaratory judgment that the

Act of 1990 is unconstitutional.

DISCUSSION

The SNI’s Sovereign Immunity

It has long been recognized that Indian tribes occupy a

unique legal status as governmental entities within the

United States. See United States v. Kagama, 118 US.

375, 382 (1886); Worcester v. Georgia, 31 U.S. (6 Pet.)

‘The Sixth cause of action also directly affects the SNI but has been

withdrawn by the plaintiffs.

53a

515, 559 (1832). The Supreme Court has declared Indian

tribes ‘‘unique aggregations possessing attributes of

sovereignty over both their members and_ their

territory.’’ United States v. Mazurie, 419 U.S. 544, 557

(1975).

Indian tribes, like other sovereigns, possess immunity

from suit, except to the extent that their immunity has

been expressly waived. The Supreme Court, in Santa

Clara Pueblo v. Martinez, 436 U.S. 49 (1978), explained

tribal immunity from suit as follows:

Indian tribes have long been recognized as

possessing the common-law immunity from suit

traditionally enjoyed by sovereign powers. This

aspect of tribal sovereignty, like all others, is

subject to the superior and plenary control of

Congress. But without congressional authorization,

the Indian Nations are exempt from suit. * * * It is

settled that a waiver of sovereign immunity cannot

be implied but must be unequivocally expressed.

Id. at 53 (citations omitted). In Santa Clara Pueblo, the

Court simply reaffirmed its long standing recognition of

the principle of tribal sovereign immunity.* See Turner v.

*Tribal sovereign immunity has been uniformly recognized and

applied throughout the lower federal courts as well. E.g., Makah

Indian Tribe v. Vertig, 910 F.2d 555 (9th Cir. 1990); Weeks Constr.

Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668 (8th Cir. 1986);

Wichita and Affiliated Tribes of Oklahoma v. Hodel, 788 F.3d 765

(D.C. Cir. 1986); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324,

1344-45 (10th Cir. 1983); Garreaux v. Andrus, 676 F.2d 1206 (8th Cir.

1982); Ramey Constr. Co. v. Apache Tribe of Mescalero Reservation,

673 F.2d 315 (10th Cir. 1982); Sekacuaptewa v. MacDonald, 619 F.2d

801 (9th Cir.), cert. denied, 449 U.S. 1010 (1980); Bottomly v.

Passamaquoddy Tribes, 599 F.2d 1061, 1064-67 (lst Cir. 1979);

California v. Quechan Tribe of Indians, 595 F.2d 1153 (9th Cir. 1979);

Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th Cir.), cert. denied, 425

U.S. 903 (1975); Cherokee Nation v. Oklahoma, 461 F.2d 674 (10th

Cir.), cert. denied, 409 U.S. 1039 (1972); Hamilton v. Nakai, 453 F.2d

152 (9th Cir.), cert. denied, 406 U.S. 945 (1971); Maryland Casualty

Co. v. Citizens National Bank, 361 F.2d 517 (5th Cir.), cert. denied,

385 U.S. 913 (1966); Twin Cities Chippewa Tribal Council v.

Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967); Haile v.

Saunooke, 246 F.2d 293 (4th Cir. 1957); Thebo v. Choctaw Tribe, 66 F.

372, 374-76 (8th Cir. 1895).

stearate teenie

Sta

United States, 248 U.S. 354 (1919); United States uv.

United States Fidelity & Guaranty Co., 309 U.S. 506,

512-13 (1940). This Court has also recognized this

principle. See e.g., Seneca Constitution Rights Org. v.

George, 348 F. Supp. 48 (W.D.N.Y. 1972); City of

Salamanca v. Seneca Nation of Indians, 47 F. Supp. 939

(W.D.N.Y. 1942). Indeed, two federal courts of appeal

have recently held that lessees of Indian lands cannot

sue tribes concerning those leases because of tribal

immunity from suit. McClendon v. United States, 885

F.2d 627 (9th Cir. 1989); Jicarilla Apache Tribe v. Hodel,

321 F.2d 537 (10th Cir. 1987).

Tribal sovereign immunity plays an _ important

practical role in protecting and preserving tribal self-

determination: if Indian tribes were subject to suits

without their consent, scarce tribal resources—here,

tribal lands—would be exposed to the expense of

litigation and possible loss. Cf. Santa Clara Pueblo, 436

U.S. at 64-65, 67 (discussing the financial impact on

tribes that would result from implied right of action

against tribal officers). As the Eighth Circuit explained

long ago in Adams v. Murphy, 165 F. 304, 308-09 (8th

Cir. 1908):

Upon considerations of public policy such Indian |

tribes are exempt from civil suit. That has been the |

settled doctrine of the government from the

beginning. If any other course were adopted, the

tribes would soon be overwhelmed with civil

litigation and judgments.

Thus, sovereign immunity is ‘‘a necessary corollary to

Indian sovereignty and_ self-governance.” Three

Affiliated Tribes v. World Eng’g., 476 U.S. 877, 890

(1986) (citations omitted).

ae eereereaineiteeneenenee

55a

In sum, Santa Clara Pueblo creates a presumption of

tribal sovereign immunity from suit. This immunity can

only be waived by Congress and any such waiver must

be “‘unequivocally expressed.’’ Santa Clara Pueblo, 436

U.S. at 58. Thus, in this case, in order to avoid dismissal

of the SNI, the plaintiffs must demonstrate to the Court

that Congress has authorized an ‘unequivocally

expressed”’ waiver of the SNI’s sovereign immunity.

The Act of 1875

The Congressional Act of 1875 provides at Section 7

that:

Sec. 7. That the courts of the State of New York

within and for the county of Cattaraugus, having

jurisdiction in real actions, and the circuit and

district courts of the United States in and for the

northern district of said State, shall have

jurisdiction of ail actions for the recovery of

possession of any real property within the limits of

said villages, whether actions of debt, ejectment, or

other forms of action, according to the practice in

said courts; and actions of forcible entry and

detainer, or of unlawful detainer arising in said

villages, may be maintained in any of the courts of

said county that have jurisdiction of such actions.

Plaintiffs argue that Section 7, on its face, creates

jurisdiction in this Court over all claims regarding the

possession of the leased property in whatever form or

action that claim may be presented to the Court. In

support of this position, plaintiffs point out that Section

7 does not specify by whom nor against whom such

claims may be made. In other words, it is not limited by

its terms to the lessor or the lessee, and does not specify

which shall be in the position of plaintiff and which in

the position of defendant. Thus, plaintiffs argue, Section

56a

7, by its “plain meaning,’’ creates an ‘‘unequivocally

expressed’’ waiver by Congress of the SNI’s tribal

sovereign immunity. The Court disagrees.

The rule of law applicable here is clear and

unambiguous: “‘a waiver of sovereign immunity cannot

be implied, but must be unequivocally expressed.’’ Santa

Clara Pueblo, 436 U.S. at 58 (emphasis added). There is

nothing in Section 7 that “‘unequivocally expresses” a

waiver of the SNI’s immunity. The SNI is not even

mentioned in Section 7. Nor is their any reference to

waiver of the SNI’s immunity.

Section 7 authorizes jurisdiction over ‘‘all actions’’ (1)

“for the recovery of rents’ and (2) for the “recovery of

possession of any real property within ... [Salamanca or

the congressional villages] whether actions for debt,

ejectment, or other forms of action,” including ‘‘forcible

entry and detainer, or ... unlawful detainer.”’ (emphasis

added). The clear purpose of Section 7 is to authorize the

SNI as lessor to sue lessees who are delinquent, or have

breached their leases, for back rent or possession (such as

by an action to eject), or for a holder of a valid lease to

sue to expel wrongdoers or trespassers interfering with

lessee’s possession. There is no indication in the

language of Section 7 that Congress intended to waive

the SNI’s immunity from suit and such a waiver ‘‘cannot

be implied.” Santa Clara Pueblo, 438 U.S. at 58. Thus,

the Court finds that Section 7 of the Act of 1875 does

not, on its face, ‘‘unequivocally express’’ waiver of the

SNI’s sovereign immunity.

Plaintiffs further argue that, even if the statute is not

clear on its face, the legislative history of Section 7 and

the Act support its position that Congress has waived

the SNI’s sovereign immunity. This argument fails,

however, for two reasons: (1) the meaning of the statute

57a

is clear on its face; and (2) even if the Court were to find

that the language of the statute is unclear or ambiguous,

the plaintiffs cannot, by definition, satisfy the

“unequivocally expressed”’ test of Santa Clara Pueblo.

It is well established that “‘[i]f Congress’ intention is

unmistakably clear in the language of the statute,

recourse to legislative history will be unnecessary ...

..’ Dellmuth v. Muth, 491 U.S. 223, 109 U.S. S.Ct. 2397,

240) (1989). As stated earlier, the Court finds that the

clear purpose of Section 7 is to authorize the SNI as

lessor to sue lessees for breach of their leases, or for a

holder of a valid lease to sue to expel wrongdoers or

trespassers. Thus, because the Court finds that

Congress’ intent is unmistakably clear in the language of

the statute, resort to the legislative history is

unnecessary.

Even if the Court were to find that Congress’ intention

is not unmistakably clear, recourse to legislative history

will be futile, because, by definition, the ‘‘unequivocally

expressed”’ rule of Santa Clara Pueblo will not be met.

Cf. Id. The rule in Santa Clara Pueblo is clear; any

Congressional waiver of an Indian tribe’s sovereign

immunity “‘cannot be implied but must be unequivocally

expressed.’ Santa Clara Pueblo, 436 U.S. at 58 (emphasis

added). Furthermore, it is well established that

ambiguities in federal laws dealing with Indians should

be resolved in their favor. John v. City of Salamanca, 845

F.2d 37, 41-42 (2d Cir.), cert. denied, 488 U.S. 850 (1988)

(citing Bryan v. Ithasca County, 426 U.S. 373, 392

(1976)). Thus, once plaintiffs have to start relying on the

legislative history of the Act in making their argument

for waiver of the SNI’s sovereign immunity, the battle is

lost. Congress’ intentions to waive the tribe’s sovereign

immunity must be “unequivocally expressed’’ by the

“plain meaning” of the language in the statute, or else

there is no waiver.

58a

Finally, plaintiffs argue that in John v. City of

Salamanca, 845 F.2d 37 (2d Cir.), cert. denied, 488 U.S.

850 (1988), the Second Circuit found that the Act of 1875

abrogated the SNI’s sovereign immunity. Specifically,

plaintiffs point to the following language in John:

While the Supreme Court has noted that a tribe

does not abandon its sovereignty over land simply

by leasing it to non-Indians, the precise scope of

tribal power over leased land nonetheless is subject

to limitation by Congress. * * * We conclude that

Congress limited the sovereignty of the Seneca

Nation over the reservation land within the City of

Salamanca. The plain language of the 1875 Act

supports this conclusion.

Id. at 42 (citations omitted). Plaintiffs, however, have

taken this language totally out of the context of the

facts in that case. It is obvious that John is clearly

distinguishable from the case at hand.

John involved a suit brought by a member of the SNI

against the City of Salamanca claiming that he was

exempt from the City’s building code with respect to a

restaurant he was constructing in the City. John claimed

that as an Indian on his own reservation he was exempt

from state regulatory control. He did not, however, claim

any immunity from suit; he brought the suit. Nor,

obviously, did the SNI assert its sovereign immunity as

it was not even a party to the suit.

The Second Circuit rejected John’s argument and held

that Section 8 of the Act of 1875 ‘‘expresses Congress’

intention to extend ordinances, such as those Salamanca

wishes to enforce against John, to the leased land.” Jd.

at 40. This holding, however, is limited to the application

of Section 8 of the Act to the facts that were present in

that case. John did not mention Section 7 of the Act.

59a

Nor did it decide or discuss the SNI’s_ sovereign

immunity from suit. The Court, therefore, finds that

John is not applicable to the case at hand.

This Court, on the other hand, has specifically held

that the SNI is immune from suit under Section 7 of the

Act of 1875. City of Salamanca v. Seneca Nation, 47 F.

Supp. 939 (W.D.N.Y. 1942). In granting a motion to

dismiss a suit by the City to enjoin the SNI from

attempting to repossess leased land in the City, where

the complaint arose ‘‘under ... the Act of Congress of

February 19, 1875, Section 7, 13 Stat. 330,’ Judge

Knight held that ‘this suit cannot be maintained in this

court without congressional authorization’”’ and ‘‘[s]uch is

lacking.’’ Jd. at 940.

In sum, the Court finds that Section 7 of the Act of

1875 fails to provide an “unequivocally expressed’’

waiver of the SNI’s sovereign immunity. Thus pursuant

to Santa Clara Pueblo, the Court must grant the SNI’s

motion to dismiss.

Rule 19

The SNI, along with the other defendants, has also

moved for dismissal of this action under Fed. R. Civ. P.

19, in the event that the Court decides, which it has, that

the SNI should be dismissed. Obviously, dismissal under

Rule 19 of the non-SNI defendants would only be

appropriate for those causes of action that could

potentially affect the rights and interest of the SNI. As

stated earlier, the SNI’s interest could only conceivably

be affected by the Court’s adjudicating the First, Eighth

and Tenth causes of action in the SNI’s absence. Thus

the Court must determine whether the SNI is an

indispensable party under Rule 19 with regard to these

causes of action only. The rest of the complaint cannot

be dismissed under Rule 19.

60a

The plaintiffs argue that, even if the Court finds that

the SNI should be dismissed because of its sovereign

immunity, the Eighth and Tenth causes of action can

still proceed against the other non-SNI defendants

because the SNI is neither a necessary nor indispensable

party to these causes of action.’ The Court finds,

however, that the SNI is both a necessary and

indispensable party under Rule 19 to both the Eighth

and Tenth causes of action.

To determine whether a party is indispensable under

Rule 19 a court must undertake a two part analysis.

First the court must determine whether the party is

necessary to the suit under Rule 19(a). If the party

cannot be joined, the Court must then determine whether

the party is indispensable under Rule 19(b), so that in

“equity and good conscience’ the suit should be

dismissed.

Rule 19 requires joinder of all materially interested

parties in a single lawsuit in order to protect interested

parties and spare judicial resources. Section (a) of Rule

19 provides:

A person who is subject to service of process and

whose joinder will not deprive the court of

jurisdiction over the subject matter of the action

shall be joined as a party in the action if

(1) in his absence complete relief cannot be

accorded among those already parties, or

(2) the person claims an interest relating to the

subject of the action and is so situated that the

disposition of the action in the person’s absence may

(i) as a practical matter impair or impede the

person's ability to protect that interest or

’ The plaintiffs conceded at oral argument on January 3, 1991 that

the SNI is an indispensable party to the First cause of action.

6la

(ii) leave any of the persons already parties

subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligations by

reason of the claimed interest. If the person has

not been so joined, the court shall order that the

person may be made a party.

If joinder of a section (a) party is not feasible, section

(b) of Rule 19 prescribes the test for deciding that the

action can still proceed. Such a determination rests in

the discretion of the trial judge applying ‘‘equity in good

conscience’ to the facts at hand. Four factors are

considered in this exercise of discretion:

1. The extent a judgment rendered in the person’s

absence might be prejudicial to the person or those

already parties.

2. The extent to which, by protective provisions in

the judgement by the shaping of relief, or other

measures the prejudice can be lessened or avoided.

3. Whether a judgment rendered in the person’s

absence will be adequate.

4. Whether the piaintiff will have an adequate

remedy if the action is dismissed for nonjoinder.

Not all four factors must be met in order for the “vurt

to proceed. Rather, each factor is evaluated

independently and the weight of the various factors

balanced by the Court to determine in ‘‘equity and good

conscience’ whether the action may proceed. ‘‘[A] court

should take a flexible approach in deciding what parties

need to be present for a just resolution of the suit.”

Jaser v. New York Property Ins. Underwriting Ass’n.,

815 F.2d 240, 242 (2d Cir. 1987) (citations omitted).

Plaintiffs’ Eighth cause of action seeks a declaratory

judgment that the Agreement between the City and the

SNI is void because the City lacked authority to enter

62a

into the Agreement. The SNI, as a party to the

Agreement, has a very strong interest in whether or not

the Agreement is valid, and any action in its absence

that would determine the validity of the Agreement

would, as a practical matter, both impair or impede the

SNI’s ability to protect that interest.

In general, “no procedural principle is more deeply

imbedded in the common law than that, in an action to

set aside a lease or a contract, all parties who may be

affected by the determination of the action are

indispensable.” Jicarilla Apache Tribe, 821 F.2d at 540;

(citing Lomayaktewa, 520 F.2d at 1325 (1976)). Indeed,

two recent cases have specifically held that where an

Indian tribe is a party to a lease agreement that is a

subject to a claim, the tribe is an indispensable party

and suit may not proceed without the tribe. McClendon,

885 F.2d at 633; Jicarilla Apache Tribe, 821 F.2d at 540.

Thus, the Court finds that the SNI is both a necessary

and indispensable party to the Eighth cause of action.

In the Tenth cause of action, plaintiffs seek a

declaration that the Settlement Act of 1990 is

unconstitutional. The Act of 1990 was Congress’ attempt

to resolve the dispute surrounding the leases between the

SNI and the lessees. The Act of 1990 provides the SNI

with a substantial payment of $60,000,000 that

represents an agreed upon difference between the lease

rentals actually received by the SNI for the past 99

years and the fair market rental for that period. Thus,

the SNI has a _ very. strong interest in the

constitutionality of the Act of 1990 and any action in its

absence to determine the constitutionality of this Act

will, as a practical matter, impair or impede the SNI'’s

ability to protect that interest. Furthermore, any

judgment rendered in the absence of the SNI would be

63a

greatly prejudicial to both the SNI and the other

defendants. The Court, therefore, finds that the SNI is

both a necessary and indispensable party to the Tenth

cause of action.

Plaintiffs argue that Rule 19 should not operate to bar

this suit because the rule only requires joinder of an

interested party if his absence would impair or impede

his ability to protect his interest. Plaintiffs contend that

the SNI need only waive its sovereign immunity and join

in the suit to protect its interest. Thus, plaintiffs

conclude, since the SNI has the ability to protect its

interests, the suit may proceed.

In effect, however, plaintiffs’ argument would totally

destroy Rule 19. Under plaintiffs’ argument, any

interested party would be able to protect its interest by

voluntarily intervening, rendering Rule 19 meaningless

and useless. The Tenth Circuit, in fact, considered a

similar argument and rejected it:

To argue ... that [a party] ... can protect its

interests through voluntary intervention would

render Rule 19(b) almost completely nugatory. A

party satisfying Rule 19(a}(2)(i) and yet not joined,

thus requiring a Rule 19(b) analysis, would always

satisfy the prerequisites for intervention as of right

under Fed. R. Civ. P. 24(a), which in part allows

intervention ‘‘when the applicant claims an interest

relating to the property or transaction which is the

_bject of the action and he is so situated that the

disposition of the action may as a practical matter

impair or impede his ability to protect that interest,

unless the applicant’s interest is adequately

represented by existing parties.’’ Under [this] ...

argument a court could never find a Rule 19%a)(2)(i)

party indispensable under Rule 19(b), because such a

party could always protect his interest by

intervening. The purpose of Rule 19, however, is not

64a

to exhort an interested person to exercise its Rule

24 rights. We decline to adopt an interpretation of

Rules 19(a(2)(i) and 19(b) that completely

emasculates them of any meaning.

Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455,

1472 n. 25 (10th Cir. 1987).

In addition, plaintiffs have failed to recognize the

paramount importance accorded the _ doctrine of

sovereign immunity under Rule 19. A long line of cases |

solidly establish that a suit may not proceed if a tribe is

an indispensable party under Rule 19 and cannot be

joined due to its sovereign immunity. See, e.g., Makah

Indian Tribe, 910 F.2d at 555; McClendon, 885 F.3d at

627; Enterprise Management Consultants, Inc. v. Hodel,

883 F.2d 890 (10th Cir. 1989); Jicarilla Apache Tribe, 821

F.2d at 537; Wichita and Affiliated Tribes of Oklahoma,

788 F.2d at 765; Lomayaktewa, 520 F.2d at 1324; Tewa

Tesugue v. Morton, 598 F.2d 240 (10th Cir. 1974), cert.

denied, 420 U.S. 962 (1975). As the Tenth Circuit has

stated: ‘When ... a necessary party under Rule 19a) is

immune from suit, there is very little room for balancing

of other factors set out in Rule 19(b) because immunity

may be viewed as one of those interests compelling by

themselves.”’ Enterprise Management Consultants, 883

F.2d at 894 (citations omitted).

In effect, plaintiffs claim a right to bring an action in

which the SNI’s rights will be determined, regardless of

whether or not the SNI has consented or is a party to

suit. Such an argument is contrary to the doctrine of

sovereign immunity. The whole purpose of sovereign

immunity is to enable a sovereign to choose when its

rights and liabilities should be determined by the courts.

If plaintiffs are allowed to bring suit and determine the

SNI’s rights in its absence, even though the SNI has not

eee

65a

waived its immunity, the SNI’s immunity would be

devoid of meaning. ‘“‘It is wholly at odds with the policy

of tribal immunity to put the tribe to this Hobson’s

choice between waiving its immunity or waiving its right

not to have a case proceed without it.’’ Wichita and

Affiliated Tribes of Oklahoma, 788 F.2d at 776.

Finally, while the Court can sympathize with the fact

that the plaintiffs may have no other adequate remedy if

this action is dismissed for non-joinder, it is well

established that where a tribe is immune from suit as a

sovereign, a party may properly be left with no forum for

its claims. Makah Indian Tribe, 910 F.2d at 555.

In sum, the Court finds that the SNI is both a

necessary and indispensable party under Rule 19 with

regard to the First, Eighth and Tenth causes of action.

Thus, the Court dismisses the First Eighth and Tenth

causes of action with respect to all defendants.

CONCLUSION

For the reasons stated herein, the SNI’s motion to

dismiss is granted. Furthermore, the First, Eighth and

Tenth causes of action are dismissed with respect to all

defendants.

SO ORDERED.

RICHARD J. ARCARA

Richard J. Arcara

United States District Judge

DATED: January 25, 1991.

66a

APPENDIX B(9)

Order Granting Motion to Shorten Time of the

United States District Court for the Western

District of New York, January 25, 1991

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. Action No. 90-1229A

JOSEPH FLUENT, et al., Individually and as

Representative of the Class of Salamanca

Lessees Holding 99-Year Leases from the

Seneca Nation of Indians;

Plaintiffs,

vs.

SALAMANCA INDIAN LEASE AUTHORITY,

et al.,

Defendants.

ORDER SHORTENING TIME

Upon motion by the plaintiffs pursuant to Rule 6(d) of

the Federal Rules of Civil Procedure for an order

shortening the time for return of plaintiffs’ motion

pursuant to Rule 54(b) of the Federal Rules of Civil

Procedure;

It is hereby ordered that plaintiffs Motion for an Order

Directing Entry of Judgment Pursuant to FRCP 54(b) of

the Federal Rules of Civil Procedure shall be returnable

before the Court on January 29, 1991 at 2:00 o'clock in

the afternoon of that day and that service of this Order

67a

together with the papers upon which it was granted by

hand delivery to Michael Brady, Esq., 1010 Chemical

Bank Building, Buffalo, New York 14202 and R. William

Stephens, Esq., 410 Main Street, Buffalo, New York

14202 shall be deemed good and sufficient service and

notice of this Motion and Order.

ls) JOHN T. CURTIN

United States District Court Judge

68a

APPENDIX B(10)

Order Granting Motion for Rule 54b) Entry of Final

Judgment Dismissing Seneca Nation And Counts One,

Eight and Ten of the United States District Court for

the Western District of New York, January 29, 1991

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CIVIL 90-1229A

JOSEPH FLUENT, etc., et al.,

Plaintiffs,

Vs.

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

SIR/MADAM: Take NOTICE of an ORDER &

JUDGMENT of which the within is a copy, duly granted

in the above entitled action on the 29th day of January,

1991, and entered in the Office of the United States

District Court, Western District of New York, on the

29th day of January, 1991.

Dated: Buffalo, N.Y.

January 29, 1991

MICHAEL J. KAPLAN, Clerk

United States District Court

Western District of New York

United States Courthouse

es Buffalo, N.Y. 14202

R. William Stephens, Esq.

David M. Franz, Esq.

Michael A. Brady, Esq.

Douglas B.L. Endreson, Esq.

Jennifer A. Coleman, Esq.

69a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Civ. 90-1229A

JOSEPH FLUENT, et al., Individually and as

Representative of the Class of Salamanca

Lessees Holding 99-Year Leases from the

Seneca Nation of Indians;

Plaintiffs,

vs.

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

ORDER FOR FINAL JUDGMENT

Defendant Seneca Nation of Indians having moved for

an Order Pursuant to Rule 12 of the Federal Rules of

Civil Procedure for dismissal of the Complaint on

grounds that the Seneca Nation of Indians is immune

from suit because of its govermental status; and

defendant Seneca Nation of Indians having moved

pursuant to Rule 19 to dismiss the action on grounds

that the action cannot proceed in the Seneca Nation of

Indian’s absence because it is an indispensable party

under Fed. R. Civ. P. 19; and

The defendants other than the Seneca Nation of

Indians having joined in the Seneca Nation of Indians’

Rule 19 Motion during oral argument on January 3,

1991; and the Court having heard the argument of

counsel]; it is

hell

70a

ORDERED, that the defendant Seneca Nation of

Indian’s Motion pursuant to Rule 12 of the Federal

Rules of Civil Procedure is granted and this action is

dismissed as against the Seneca Nation of Indians; and it

is further

ORDERED, that the defendants’ Motion to Dismiss

Pursuant to Rule 19 is granted with respect to the first,

eighth and tenth causes of action in the Complaint; and

it is further

ORDERED that the Clerk of this Court enter a final

judgment pursuant to Rule 54(b) upon the order

herein dismissing the complaint against the Seneca

Nation of Indians and dismissing the first, eighth and

tenth causes of action, and the undersigned expressly

determines that there is no just reason for delay in

hearing the appeal upon the entry of final judgment on

this Order, on grounds that the 99-year leases at issue

expire on February 19, 1991.

Dated: Buffalo, New York

January 29, 1991

RICHARD J. ARCARA

Richard J. Arcara

U.S. District Judge

71a

APPENDIX B(11)

Judgment on Order of January 29, 1991 Granting Final

Judgment per Rule 54(b) of the United States District

Court for the Western District of New York,

January 29, 1991

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CIV 90-1229A

JOSEPH FLUENT, et al., Individually and as

Representative of the Class of Salamanca

Lessees holding 99-Year Leases from the

Seneca Nation of Indians,

Plaintiffs,

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

JUDGMENT IN A CIVIL CASE

{ } Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

[x] Decision by Court. This action came to +riel or

hearing before the Court. The issues have been tried

or heard and a decision has been rendered.

IT iS ORDERED AND ADJUDGED That Final

Judgment is entered pursuant to Rule 54(b)

dismissing the complaint as to defendant Seneca

Nation of Indians; also dismissing the First, Eighth

and Tenth Causes of action.

January 29, 1991

Date

FILED (By) Deputy Clerk

91 JAN 29 PM 3:27

U.S. DISTRICT COURT

W.D.N.Y.—BUFFALO

72a

APPENDIX B(12)

Determination of Non-intervention by New York

State of the United States District Court

for the Western District of New York,

January 30, 1991

(SEAL)

STATE OF NEW YORK

DEPARTMENT OF LAW

ALBANY, NY 12224

ROBERT ABRAMS JAN 24 1991

Attorney General (Stamp Illegible)

O. PETER SHERWOOD January 22, 1991

ae Telephone (518) 474-6639

Hon. Michael J. Kaplan

Clerk

United States District Court FILED

Western District of New York 91 JAN 30 AM 10:24

United States Courthouse U.S. DISTRICT COURT

Buffalo, NY 14202 W.D.N.Y.—BUFFALO

Re: Joseph Fluent v. Salamanca Indian

Lease Authority, et al.

Civ No. 90-1229A

Dear, Mr. Kaplan:

With reference to the certification order issued by

Judge Arcara in the above-referenced matter on

January 8, 1991, please advise Judge Arcara that the

State of New York does not intend to intervene in this

action at this time.

Very truly yours,

LEW A. MILLENBACH

cc: Damon & Morey, Esqs Lan A. SRERaeerenes

‘ ’ Assistant Attorney General

Shane & Franz, Esqs.

Attn: David M. Franz, Esq.

Raichle, Banning, Weiss & Stephens, Esqs.

Attn: R. William Stephens, Esq.

73a

APPENDIX B(i3)

Determination of Non-Intervention by United

States of the United States District Court

for the Western District of New York,

February 5, 1991

FILED

91 FEB-5 AM 9:19

U.S. DISTRICT COURT

W.D.N.Y.—BUFFALO

STEVEN E. CARROLL

LAUREN SOLL

Attorneys, U.S. Department of Justice

Environment and Natural Resources Division

Indian Resources Section

P.O. Box 44378

Washington, D.C. 20026-4378

(202) 272-5750

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CIV-90-1229A

JOSEPH FLUENT, Individually and as Representative

of the Class of Salamanca Lessees Holding

99-Year Leases from the Seneca Nation

of Indians, et al,

Plaintiffs,

SALAMANCA INDIAN LEASE AUTHORITY, et al,

Defendants.

74a

UNITED STATES’ RESPONSE TO

CERTIFICATION ORDER

The United States files this response to the Court’s

Certification Order, under 28 U.S.C. §2403(a), to the

Attorney General. The United States has received a copy

of the Court’s January 25, 1991 Decision and Order

dismissing, inter alia, count ten of the complaint. Count

ten is the only claim that raised constitutional challenges

to the Settlement Act.

In light of the dismissal of the constitutional challenge

to the Act, the United States believes that the Court’s

certification order is moot, and therefore will not file any

further response to the certification order.

Respectfully submitted,

STEVEN E. CARROLL

STEVEN E. CARROLL, Attorney

LAUREN SOLL, Attorney

Indian Resources Section

Environment and Natural

Resources Division

P.O. Box 44378

Washington, D.C. 20026-4378

202) 272-5750

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing United

States’ Response to Certification Order was served by

regular first class mail, postage prepaid on February 4,

1991.

Michael A. Brady, Esquire

Hagerty & Brady

1010 Chemical Bank Building

Buffalo, New York 14202-387

Douglas B.L. Enderson

Reid, Payton & Chambers

1250 Eye Street, N.W.

Suite 1000

Washington, D.C. 20005

Jennifer Coleman, Esquire

Damon & Morey

1000 Cathedral Place

298 Main Street

Buffalo, New York 14202-4096

David M. Franz, Esquire

Shane & Franz

Attorney for Defendant

City of Salamanca, et al.

125 South Union

Olean, New York 14760

R. William Stephens, Esquire

Raichle, Banning, Weiss and

Stephens

Attorney for Defendant

David M. Franz, et al.

410 Main Street

Buffalo, New York 14202

STEVEN E. CARROLL

Steven E. Carroll

Lauren Soll

Attorneys, Department of Justice

Environmental and Natural

Resources Division

Indian Resources Section

P.O. Box 44378

Washington, D.C. 20026-4378

(202) 272-5750

76a

[1] APPENDIX B(14)

Transcript Re: Judge Arcara’s Findings on Motion

Pursuant to Rule 54(b) of the United States

District Court for the Western District

of New York, January 29, 1991

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CIV 90-1229A

JOSEPH FLUENT, et al.,

Plaintiffs,

-Vs-

SALAMANCA INDIAN LEASE AUTHORITY, et al.,

Defendants.

Proceedings held before the HONORABLE RICHARD

J. ARCARA, taken on the 6th Floor of the United States

Courthouse, 68 Court Street, Buffalo, New York on

January 29, 1991, commencing at 2:00 P.M.

APPEARANCES:

DAMON & MOREY,

BY: JENNIFER COLEMAN, ESQ.,

10600 Cathedral Place,

Buffalo, New York,

Appearing for the Plaintiffs.

RAICHLE, BANNING, WEISS

& STEPHENS

BY: R. WILLIAM STEPHENS, ESQ.,

410 Main Street,

Buffalo, New York,

Appearing for Defendants, other

than Seneca Nation of Indians.

77a

HAGERTY & BRADY,

BY: MICHAEL BRADY, ESQ.,

1010 Chemical Bank Building,

Buffalo, New York,

Appearing for Seneca Nation

of Indians.

{2} THE CLERK: Civil 90-1229A, motion for entry of

judgment. Could you please state your names for the

record, and the parties that you represent.

MS. COLEMAN: Jennifer Coleman, Attorney for the

plaintiffs.

MR. STEPHENS: R. William Stephens, for the

defendants other than the Seneca Nation of Indians.

MR. BRADY: Michael Brady, on behalf of the

| defendant Seneca Nation of Indians.

| MR. STEPHENS: Judge, in the interest of saving

time, on behalf of the defendants other than the Seneca

Nation, counsel for the plaintiffs has informed me that

she does not presently intend to file an appeal from the

earlier order of this court denying injunctive relief. And

if that be the case, then it seems to me that we could

stipulate that if the Court of Appeals should reverse on

the question of sovereign immunity, that the judgment

would be reversed as to the other defendants on

counts—what are the numbers, one—

MS. COLEMAN: One, eight and ten.

MR. STEPHENS: —one, eight and [3] ten, because

that was the only basis on which you dismissed them,

was that the Seneca Nation was an indispensible party.

And with that stipulation, then, Judge, we would not

have to be a party to the appeal; we will not have to go

to New York, and my clients could save on legal

expenses.

78a

And so we have no objection to a 54-B certification,

and would agree that if, underline if, please, if the

judgment were to be reversed, it would be reversed as to

the clients I represent also.

MS. COLEMAN: One comment on that, I guess, and

this just occurred to me, Mr. Stephens, is, on the tenth

count, which is the Settlement Act of 1990, the court

could find that that could proceed even if it determines

there’s no jurisdiction over the sovereign nation of

Indians. So I would want to appeal the dismissal of that

count which could rise or fall independent of the

jurisdictional ruling with respect to the Seneca Nation.

THE COURT: So then you can’t enter into a

stipulation.

MR. STEPHENS: I guess we can’t. On [4] one and

eight, we could. I don’t know if that helps him any.

THE COURT: He’s going to be there one way or the

other.

MR. STEPHENS: I have no objection to the 54-B

certification as to the Seneca Nation. I think that there’s

a different question presented as to the defendants [|

represent, but that’s neither here nor there.

THE COURT: All right. Mr. Brady?

MR. BRADY: Judge, we do not object to the entry of

final judgment on the counts that plaintiff seeks to have

entry of judgment upon. However, in our review of the

rule in the cases that interpret it, we felt that we should

call the Court’s attention to some of these cases, because

what the cases that we looked at indicate is that this

cannot be done on the basis of counsel simply agreeing

to it or stipulating to it, or otherwise. It has to be done

upon an express written finding by the court in

accordance with the standards of this rule. And based on

what has been presented to the Court at this stage, I’m

79a

not sure that that’s been drawn to the [5] Court’s

attention, or that the Court would be in a position to

make those findings.

MS. COLEMAN: Your Honor—

THE COURT: My research, under Rule 54B, has

indicated that there are basically three requirements that

have to be met. One, either multiple claims or relief, or

multiple parties must be involved.

Two, at least one claim for the rights and liabilities of

at least one party must be finely decided, and three,

there must be no just reuson for denying 2n appeal.

Those are, based on my research, Mr. Brady, and I

didn’t know what your position was or whether you had

even researched this matter, but I independently did

some research on this to determine. That’s basically the

three requirements.

It appears to me that the complaint does assert

multiple causes of action, it includes multiple parties. So

the first requirement is met. Second, that the first,

eighth and tenth causes of action, along with the rights

and liabilities of the sixth, have been finally decided, and

finally, there is no just reason for [6] delaying the appeal.

To the contrary, it would appear to me that any delay

would greatly prejudice the plaintiffs because of the

approaching February 19th, 1991 termination date.

So that’s, from my review, the principles that are

involved here. Is there something further that you feel

that I have to determine, Mr. Brady?

MR. BRADY: Judge, I think only on the last point,

which is—

THE COURT: Okay. There’s no just reason?

MR. BRADY: Right. )

THE COURT: What would—Mr. Brady, what reason

would you suggest that would not be just here? I mean,

for all intents and purposes, if this matter isn’t reviewed

80a

by the Second Circuit in the next three or four weeks,

this all becomes very academic.

MR. BRADY: I'm not so sure, actually, Judge, as to

our client, even if the court does review it. It materially

changes things between now and February 19th.

THE COURT: All right.

MR. BRADY: But our concern was, [7] Judge, that

what the Court was being asked to do was simply to

certify it under 54-B.

THE COURT: I’ve done more than that now. I’ve

made some—drawn some conclusions here based upon

the record.

MR. BRADY: Right. And that’s our understanding

of what has to happen, is that the Court has to provide

written, you know, a written explanation of the no just

reason for delay so that the Second Circuit—

THE COURT: Let me ask you this. Have I given

sufficient reason, Mr. Brady, or do you feel there’s

something more I have to do? I don’t know what more I

am to do. I am inclined to grant this motion, because I

think under all the circumstances here, this is obviously

affecting a lot of people, their lives, homes, businesses.

I brought a decision as quickly as I could. Some of

these issues here are somewhat complex. There was very

voluminous submissions on this, it required a

tremendous amount of reading and writing here, and I

have tried to do it as expeditiously as I could, realizing

the circumstances here, and therefore, when the motion

was made, I was very inclined to go through that.

[8] I wanted to take a look at the record, find out what

the principles are as far as 54-B is concerned. I’ve looked

at them. This is my understanding. I don’t know if

there’s anything more I have to do. I’m inclined to grant

it, unless there’s some opposition to it.

8la

MR. BRADY: And Judge, we've indicated, we don’t

have an opposition. \

THE COURT: Okay.

MR. BRADY: And our concern was, some of the

cases say, look it, and the Second Circuit is saying, look

it, counsel should have taken a part of this, and not

simply stipulating to this, so we didn’t want to be in a

position of just standing back and not calling the Court’s

attention to what—

THE COURT: Have you taken a look at the proposed

order?

MR. BRADY: No. I was just handed it.

THE COURT: Could you take a few moments and

look at it, and if you don’t like it, work something out.

And it’s much better if you work it out rather than if I

work it out.

MR. BRADY: That’s fine.

[9] MS. COLEMAN: I would note on the record, Your

Honor, that the paragraph one tracks the language of

the Court’s decision and order of January 25th.

THE COURT: That shouldn’t present any problems.

MS. COLEMAN: No. And then the _ decreedal

paragraphs are simply saying you have ordered dismissal

of the counts, and it contains the language of 54-B, that

there is no just cause for delay and that you are

directing the court to enter judgment on this order.

THE COURT: Take a recess, and as soon as you

agree, as soon you agree, then come back in, all right?

MR. BRADY: Fine, Judge.

THE COURT: Thank you.

MS. COLEMAN: Thank you, Judge.

(Whereupon, a recess was then taken.)

MS. COLEMAN: We just added, Your Honor, that

the grounds 54-B and the statement of no finding for

just cause of delay was because of the expiration of the

ninety-nine year lease.

82a

THE COURT: Mr. Stephens? Mr. [10] Brady?

MR. BRADY: That’s fine, Judge.

THE COURT: I can sign it, we can have it filed

today, and off to New York.

MS. COLEMAN: I'd be happy to take it down to file

it, Your Honor, because it’s my notice of appeal, and I

would like to file it.

(The proceedings concluded at 2:30 P.M.)

* * * *

I certify that the foregoing is a correct transcription of

the proceedings recorded by me in this matter.

BARBARA BUYERS

BARBARA BUYERS,

CSR, RPR

83a

APPENDIX C(I)

Treaty Between United States and Seneca Nation

(Big Tree Treaty—F. Stat. 601, September 15, 1797)

Big Tree Treaty

(With Robert Morris)

7 Stat. 601

September 15, 1797

JOHN ADAMS

President Of The United States of America

To All to Whom These Presents Shall Come, Greetings

Whereas a Treaty was held on the Fifteenth day of

September last at Genesee, in the County of Ontario in

the State of New York under the authority of the United

States with the Seneka nation of Indians, and at the said

treaty, in the presence and with the approbation of

Jeremiah Wadsworth, the Commissioner of the United

States, appointed to hold the same, a Convention was

entered into between the said Seneka nation of Indians,

and the Claimant of the pre-emption right to the land

which is the subject of the said convention, in which the

compensation for the extinguishment of the claims of the

said Indians to that land is adjusted: which Convention

is in the words following:

CONTRACT

Entered into, under the sanction of the United States of

America between Robert Morris and the Seneka nation

of Indians.

This indenture, made the fifteenth day of September, in

the year of our Lord one thousand seven hundred and

ninety-seven, between the sachems, chiefs, and

84a

warriors of the Seneka nation of Indians, of the first

part, and Robert Morris, of the city of Philadelphia,

Esquire, of the second part:

Whereas the Commonwealth of Massachusetts have

granted, bargained, and sold unto the said Robert

Morris, his heirs and assigns, forever, the pre-emptive

right, and all other the right, title, and interest, which

the said Commonwealth had to al! that tract of land

hereinafter particularly mentioned, being part of a tract

of land lying within the State of New York, the right of

pre-emption of the soil whereof, from the native Indians,

was ceded and granted by the said State of New York, to

the said Commonwealth: and whereas, at a treaty held

under the authority of the United States, with the said

Seneka nation of Indians, at Genesee, in the county of

Ontario, and State of New York, on the day of the date

of these presents, and on sundry days immediately prior

thereto, by the honorable Jeremiah Wadsworth, Esquire,

a commissioner appointed by the President of the United

States to hold the same, in pursuance of the constitution,

and of the act of the congress of the United States, in

such case made and provided, it was agreed, in the

presence and with the approbation of the said

commissioner, by the sachems, chiefs, and warriors of

the said nation of Indians, for themselves and in behalf

of their nation, to sell to the said Robert Morris, and to

his heirs and assigns. forever, all their right to all that

tract of land above recited, and hereinafter particularly

specified, for the sum of one hundred thousand dollars, to

be by the said Robert Morris vested in the stock of the

bank of the United States, and held in the name of the

President of the United States, for the use and behoof of

the said nation of Indians, the said agreement and sale

being also made in the presence, and with the

approbation of the honorable William Stephens, Esquire,

85a

the superintendent appointed for such purpose, in

pursuance of a resoive of the General Court of the

Commonwealth of Massachusetts, passed the eleventh

day of March, in the year of our Lord one thousand

seven hundred and ninety-one: now this indenture

witnesseth, that the said parties, of the first part, for

and in consideration of the premises above recited, and

for divers other good and valuable considerations them

thereunto moving, have granted, bargained, sold, aliened,

released, enfeoffed, and confirmed; and by these presents

do grant, bargain, sell, alien, release, enfeoff, and

confirm, unto the said party of the second part, his heirs

and assigns, forever, all that certain tract of land, except

as is hereinafter excepted, lying within the county of

Ontario, and State of New York, being part of a tract of

land, the right of pre-emption whereof was ceded by the

State of New York to the Commonwealth of

Massachusetts, by deed of cession executed at Hartford,

on the sixteenth day of December, in the year of our Lord

one thousand seven hundred and eighty-six, being

such part thereof as is not included in the Indian

purchase made by Oliver Phelps and Nathaniel Gorham,

and bounded as follows, to wit: easterly, by the land

confirmed to Oliver Phelps and Nathaniel Gorham by the

legislature of the Commonwealth of Massachusetts, by

an act passed the twenty-first day of November, in the

year of our Lord one thousand seven hundred and

eighty-eight; southerly, by the north boundary line of the

State of Pennsylvania; westerly, partly by a tract of

land, part of the land ceded by the State of

Massachusetts to the United States, and by them sold to

Pennsylvania, being a right angled triangle, whose

hypothenuse is in or along the shore of lake Erie; partly

by lake Erie, from the northern point of that triangle to

the southern bounds of a tract of land one mile in width,

Treaty of

Hartford

16 Dec.

1786

86a

lying on and along the east side of the strait of Niagara,

and partly by the said tract to lake Ontario; and on the

north by the boundary line between the United States

and the King of Great Britain: excepting, nevertheless,

and always reserving out of this grant and conveyance,

all such pieces or parcels of the aforesaid tract, and such

privileges thereunto belonging, as are next hereinafter

particularly mentioned, which said pieces or parcels of

land so excepted, are, by the parties to those presents,

clearly and fully understood to remain the property of

the said parties of the first part, in as full and ample

manner as if these presents had not been executed: that

is to say, excepting and reserving to them, the said

parties of the first part, and their nation, one piece or

parcel of the aforesaid tract, at Canawagus, of two

square miles, to be laid out in such manner as to include

the village, extending in breadth one mile along the river;

one other piece or parcel at Big Tree, of two square

miles, to be laid out in such manner as to include the

village, extending in breadth along the river one mile;

one other piece or parcel of two square miles at Little

Beard’s town, extending one mile along the river, to be

laid off in such manner as to include the village; one

other tract of two square miles at Squawky Hill, to be

laid off as follows, to wit: one square mile to be laid off

along the river, in such manner as to include the village,

the other directly west thereof and contiguous thereto;

one other piece or parcel at Gardeau, beginning at the

mouth of Steep Hill creek, thence due east until it strikes

the old path, thence south until a due west line will

intersect with certain steep rocks on the west side of

Genesee river, then extending due west, due north, and

due east, until it strikes the first-mentioned bound,

enclosing as much land on the west side as on the east

side of the river. One other piece or parcel at

87a

Kaounadeau, extending in length eight miles along the

river and two miles in breadth. One other piece or parcel

at Cataraugos, beginning at the mouth of the Eighteen

mile or Koghquaugu creek, thence a line or lines to be

drawn parallel to lake Erie, at the distance of one mile

from the lake, to the mouth of Cataraugos creek, thence

a line or lines extending twelve miles up the north side of

said creek at the distance of one mile therefrom, thence a

direct line to the said creek, thence down the said creek

to lake Erie, thence along the lake to the first-mentioned

creek, and thence to the place of beginning. Also, one

other piece at Cataraugos, beginning at the shore of lake

Erie, on the south side of Cataraugos creek, at the

distance of one mile from the mouth thereof, thence

running one mile from the lake, thence on a line parallel

thereto to a point within one mile from the

Connondauweyea creek, thence up the said creek one

mile, on a line parallel thereto, thence on a direct line to

the said creek, thence down the same to lake Erie, thence

along the lake to the place of beginning. Also one samen iteese x

piece or parcel of forty-two square miles, at or near the

Allegenny river. Also, two hundred square miles, to be

laid off partly at the Buffalo and partly at the

Tannawanta creeks. Also, excepting and reserving to

them, the said parties of the first part and their heirs,

the privilege of fishing and hunting on the said tract of

land hereby intended to be conveyed. And it is hereby

understood by and between the parties to these presents,

that all such pieces or parcels of land as are hereby

rserved, and are not particularly described as to the

manner in which the same are to be laid off, shall be laid

off in such manner as shall be determined by the

sachems and chiefs residing at or near the respective

villages where such reservations are made, a particular

note whereof to be endorsed on the back of this deed,

Cattaraugus

Reservation

88a

and recorded therewith, together with all and singular

the rights, privileges, hereditaments, and appurtenances

thereunto belonging, or in anywise appertaining. And all

the estate, right, title, and interest, whatsoever, of them

the said parties of the first part and their nation, of, in,

and to the said tract of land above described, except as

is above excepted, to have and to hold all and singular

the said granted premises, with the appurtenances to the

said party of the second part, his heirs and assigns, to

his and their proper use, benefit, and behoof forever.

In witness whereof, the parties to these presents have

hereunto interchangeably set their hands and seals,

the day and year first above written.

Robert Morris, by his attorney,

Thomas Morris,

Koyengquahtah, als. Young King,

Soonookshewan,

Konutaico, als. Handsome Lake,

Sattakanguyase, als. Two Skies

of a length,

Onayawos, or Farmer’s Brother,

Soogooyawautau, als. Red

Jacket,

Taosstaiefi,

Koeentwahka, or Corn Planter

Oosaukauendauki, als. to

Destroy a Town,

Sooeoowa, alias Parrot Nose,

Toonahookahwa,

Howwennounew,

Kounahkaetoue,

Taouyaukauna,

Woudougoohkta,

Sonauhquaukau,

Gishkaka, als. Little Billy,

Kaoundoowana, als. Pollard,

Ouneashataikau, or Tail Chief,

by his agent Stevenson,

Teahdowainggua, als. Thos.

Jemison,

Onnonggaiheko, also. Infant,

Tekonnondee,

Oneghtaugooau,

Connawaudeau,

Ahtaou,

Taukooshoondakoo,

Kauneskanggo,

Soononjuwau,

Tonowauiya, or Captain Bullet,

Jaahkaaeyas,

Taugihshauta,

Sukkenjoonau,

Ahquatieya, or Hot Bread,

Suggonundau,

Taunowaintooh,

89a

Twaunsuiyana, Konnonjoowauna,

Takaunoudea, Soogooeyaudestak,

Shequinedaughque, or Little | Hautwanauekkau, by Young King,

Beard, Sauwejuwau,

Jowaa, Kaunooshshauwen,

Saunajee, Taukonondaugekta,

Tauolyuquatakausea, Kaouyanaughque, or John Jemison,

Taoundaudish, Hoiegush,

Tooauquainda, Taknaahquau.

To the Indian names are subjoined marks and seals.

Sealed and delivered in presence of—

Nat. W. Howell, Henry Aaron Hilis,

Joseph Ellicott, Henry Abeel,

Israel Chapin, Jasper Parris, )

James Rees, Horatio Jones, ) Interpreters.

Done at a full and general treaty of the Seneka

nation of Indians, held at Genessee, in the

county of Ontario, and State of New York, on

the fifteenth day of September, in the year of

our Lord one thousand seven hundred and

ninety-seven, under the authority of the United

States.

In testimony whereof, I have hereunto set my

hand and seal, the day and year aforesaid.

Jere. Wadsworth, (L.S)

Pursuant to a resolution of the legislature of the

Commonwealth of Massachusetts, passed the eleventh

day of March, in the year of our Lord one thousand

seven hundred and ninety-one, I have attended a full and

general treaty of the Seneka nation of Indians, at

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Genesee, in the county of Ontario, when the within

instrument was duly executed in my presence by the

sachems, chiefs, and warriors of the said nation, being

fairly and properly understood and transacted by all the

parties of Indians concerned, and declared to be done to

their universal satisfaction: I do therefore certify and

approve of the same.

Wm. Shephard.

Subscribed in presence of—

Nat. W. Howell.

Now be it known, That I John Adams, President of the

United States of America, having seen and considered

the said Convention of Treaty, and being satisfied that

the investment of the money therein mentioned, has been

made conformably to the intention of the said

Convention or Treaty do by and with the advice and

consent of the Senate, accept, ratify and confirm the

same, and every clause and article thereof: In Testimony

whereof, I have caused the Seal of the United States of

America to be affixed to these Presents, and signed the

same with my Hand.

Done at the City of Philadelphia, the Eleventh Day

of April in the Year of our Lord one thousand

seven hundred and ninety-eight, and of the

independence of the United States of America,

the Twenty-second.

John Adams

By the President of the United States

Timothy Pickering,

Secretary of State

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APPENDIX C(2)

Treaty Between United States and Seneca .

Nation (Buffalo Creek Treaty—F. Stat. 550,

January 15, 1838)

Buffalo Creek Treaty

7 Stat. 550

January 15, 1838

MARTIN VAN BUREN

President of the United States of America

To All and Singular toWhom These Presents Shall Come,

Greeting:

Whereas, a treaty was made and concluded at Buffalo,

in the State of New York, on the fifteenth day of

January, one thousand eight hundred and thirty-eight,

by Ransom H. Gillet, a Commissioner on the part of the

United States, and the chiefs, headsmen and warriors of

the several tribes of New York Indians, assembled in

council.

And Whereas, the Senate did, by a resolution of the

eleventh of June, one thousand eight hundred and thirty-

eight, advise and consent to the ratification of said

treaty with certain amendments; which treaty, so

amended, is word for word as follows, to wit:

Articles of A Treaty—15 Jan. 1838

Made and concluded at Buffalo Creek in the State of

New York, the fifteenth day of January in the year of

our Lord one thousand eight hundred and thirty-eight,

by Ransom H. Gillet, a commissioner on the part of

the United States, and the chiefs, head men and

warriors of the several tribes of New York Indians

assembling in council witnesseth:

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Whereas, The six nations of New York Indians not

long after the close of the war of the Revolution, became

convinced from the rapid increase of the white

settlements around, that the time was not far distant

when their true interest must lead them to seek a new

home among their red brethren in the West: And

whereas this subject was agitated in a general council of

the Six Nations as early as 1810, and resulted in sending

a memorial to the President of the United States,

inquiring whether the Government would consent to

their leaving their habitations and their removing into

the neighborhood of their eastern brethren, and if they

could procure a home there, by gift or purchase, whether

the Government would acknowledge their title to the

lands so obtained in the same manner it had

acknowledged it in those from whom they might receive

it; and further, whether the existing treaties would, in

such a case remain in full force, and their annuities be

paid as heretofore: And whereas, with the approbation of

the President of the United States, purchases were made

by the New York Indians from the Menomonie and

Winnebago Indians of certain lands at Green Bay in the

Territory of Wisconsin, which after such difficulty and

contention with those Indians concerning the extent of

that purchase, the whole subject was finally settled by a

treaty between the United States and the Menomonie

Indians, concluded in February, 1831, to which the New

York Indians gave their assent on the seventeenth day

of October 1832: And whereas, by the provisions of that

treaty, five hundred thousand acres of land are secured

to the New York Indians of the Six Nations and the St.

Regis tribe, as a future home, on condition that they all

remove to the same, within three years, or such

reasonable time as the President should prescribe: And

whereas, the President is satisfied that various

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considerations have prevented those still residing in New

York from removing to Green Bay, and among other

reasons, that many who were in favour of emigration,

preferred to remove at once to the Indian territory,

which they were fully persuaded was the only permenant

and peaceable home for all the Indians. And they

therefore applied to the President to take their Green

Bay lands, and provide them a new home among their

bretheren in the Indian territory. And whereas, the

President being anxious to promote the peace, prosperity

and happiness of his red children, and being determined

to carry out the humane policy of the Government in

removing the Indians from the east to the west of the

Mississippi, within the Indian territory, by bringing

them to see and feel, by his justice and liberality, that it

is their true policy and for their interest to do so without

delay.

Therefore, taking into consideration the foregoing

premises, the following articles of a treaty are entered

into between the United States of America and the

several tribes of the New York Indians, the names of

whose chiefs, head men and warriors are hereto

subscribed, and those who may hereafter give their

assent to this treaty in writing, within such time as the

President shall appoint.

General Provisions

Article 1. The several tribes of New York Indians, the

names of whose chiefs, head men, warriors and

representatives are hereunto annexed, in consideration of

the premises above recited, and the convenants

hereinafter contained, to be performed on the part of the

United States, hereby cede and relinquish to the United

States all their right, title and interest to the lands

secured to them at Green Bay by the Menomonie treaty

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of 1831, excepting the following tract, on which a part of

the New York Indians now resides beginning at the

southwesterly corner of the French grants at Green Bay,

and running thence southwardly to a point on a line to

be run from the Little Cocaclin, parallel to a line of the

French grants and six miles from Fox River; from thence

on said parallel line, northwardly six miles; from thence

eastwardly to a point on the northeast line of the Indian

lands, and being at right angles to the same.

Article 2. In consideration of the above cession and

relinquishment, on the part of the tribes of the New York

Indians, and in order to manifest the deep interest of the

United States in the future peace and prosperity of the

New York Indians, the United States agree to set apart

the following tract of country, situated directly west of

the State of Missouri, as a permanent home for all the

New York Indians, now residing in the State of New

York, or in Wisconsin, or elsewhere in the United States,

who have no permanent homes, which said country is

described as follows, to wit: Beginning on the west line

of the State of Missouri, at the northeast corner of the

Cherokee tract and running thence north along the west

line of the State of Missouri, twenty-seven miles to the

southerly line of the Miami lands; thence west so far as

shall be necessary, by running a line at right angles, and

parallel to the west line aforesaid, to the Osage lands,

and thence easterly along the Osage and Cherokee lands

to the place of beginning to include one million eight

hundred and twenty-four thousand acres of land, being

three hundred and twenty acres for each soul of said

Indians as their numbers are at present computed. To

have and to hold the same in fee simple to the said tribes

or nations of Indians, by patent from the President of

the United States, issued in conformity with the

provision of third section of the act, entitled ‘“‘An act to

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provide for an exchange of lands, with the Indians

residing in any of the States or Territories, and for their

removal west of the Mississippi,’’ approved on the 28th

day of May, 1830, with full power and authority in the

said Indians to divide said lands among the different

tribes, nations, or bands, in severalty, with the right to

sell and convey to and from each other, under such laws

and regulations as may be adopted by the respective

tribes, acting by themselves, or by a general council of

the said New York Indians, acting for all the tribes

collectively. It is understood and agreed that the above

described country is intended as a future home for the

following tribes, to wit: The Senecas, Onondagas,

Cayugas, Tuscaroras, Oneidas, St. Regis, Stockbridges,

Runsees, and Brothertowns residing in the State of New

York, and the same is to be divided equally among them,

according to their respective numbers, as mentioned in a

schedule hereunto annexed.

Article 3. It is further agreed that such of the tribes of

the New York Indians as do not accept and agree to

remove to the country set apart for their new homes

within five years, or such other time as the President

may, from time to time, appoint, shall forfeit all interest

in the lands so set apart, to the United States.

Article 4. Perpetual peace and friendship shall exist

between the United States and the New York Indians;

and the United States hereby guaranty to protect and

defend them in the peaceable possession and enjoyment

of their new homes, and hereby secure to them, in said

country, the right to establish their own form of

government, appoint their own officers, and administer

their own laws; subject, however, to the legislation of the

Congress of the United States, regulating trade and

intercourse with the Indians. The lands secured to them

96a

by patent under this treaty shall never be included in

any State or Territory of this Union. The said Indians

shall also be entitled, in all respects, to the same political

and civil rights and privileges, that are granted and

secured by the United States to any of the several tribes

of emigrant Indians settled in the Indian Territory.

Article 5. The Oneidas are to have their lands in the

Indian Territory, in the tract set apart for the New York

Indians, adjoining the Osage tract, and that hereinafter

set apart for the Senecas; and the same shall be so laid

off as to secure to them a sufficient quantity of timber

for their use. Those tribes, whose lands are not specially

designated in this treaty, are to have such as shall be set

apart by the President.

Article 6. It is further agreed that the United States

will pay to those who remove west, at their new homes,

all such annuities, as shall properly belong to them. The

schedules hereunto annexed shall be deemed and taken

as a part of this treaty.

Article 7. It is expressly understood and agreed, that

this treaty must be approved by the President and

ratified and confirmed by the Senzte of the United

States, before it shall be binding upon the parties to it.

It is further expressly understood and agreed that the

rejection, by the President and Senate, of the provisions

thereof, applicable to one tribe, or distinct branch of a

tribe, shall not be construed to invalidate as to others,

but as to them it shall be binding, and remain in full

force and effect.

Article 8. It is stipulated and agreed that the accounts

of the Commissioner, and expenses incurred by him in

holding a council with the New York Indians, and

concluding treaties at Green Bay and Duck Creek, in

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Wisconsin, and in the State of New York, in 1836, and

those for the exploring party of the New York Indians,

in 1837, and also the expenses of the present treaty,

shall be allowed and settled according to former

precedents.

Special Provisions For The Senecas

Article 10. It is agreed with the Senecas that they

shall have for themselves and their friends, the Cayugas

and Onondagas, residing among them, the easterly part

of the tract set apart for the New York Indians, and to

extend as far west, as to include one half-section (three

hundred and twenty acres) of land for each soul of the

Senecas, Cayugas and Onondagas, residing among them;

and if, on removing west, they find there is not sufficient

timber on this tract for their use, then the President

shall add thereto timber land sufficient for their

accommodation, and they agree to remove; to remove

from the State of New York to their new homes within

five years, and to continue to reside there. And whereas

at the making of this treaty, Thomas L. Ogden and

Joseph Fellows the assignees of the State of

Massachusetts, have purchased of the Seneca nation of

Indians, in the presence and with the approbation of the

United States Commissioner, apointed by the United

States to hold said treaty, or convention, all the right,

title, interest, and claim of the said Seneca nation, to

certain lands, by a deed of conveyance a duplicate of

which is hereunto annexed; and whereas. the

consideration money mentioned in said deed, amounting

to two hundred and two thousand dollars, belongs to the

Seneca nation, and the said nation agrees that the said

sum of money shal! be paid to the United States, and the

United states agree to receive the same, to be disposed

of as follows: the sum of one hundred thousand dollars

98a

is to be invested by the President of the United States in

safe stocks, for their use, the income of which is to be

paid to them at their new homes, annually, and the

balance, being the sum of one hundred and two thousand

dollars, is to be paid to the owners of the improvements

on the lands so deeded, according to an appraisement of

said improvements and a distribution and award of said

sum of money among the owners of said improvements,

to be made by appraisers, hereafter to be appointed by

the Seneca nation, in the presence of a United States

Commissioner, hereafter to be appointed, to be paid by

the United States to the individuals who are entitled to

the same, according to said appraisal and award, on their

severally relinquishing their respective possessions to the

said Ogden and Fellows.

. Article 15. The United States hereby agree that they

will appropriate the sum of four hundred thousand

dollars, to be applied from time to time, under the

direction of the President of the United States, in such

proportions, as may be most for the interest of the said

Indians, parties to this treaty, for the following

purposes, to wit: To aid them in removing to their

homes, and supporting themselves the first year after

their removal; to encourage and assist them in education,

and in being taught to cultivate their lands; in erecting

mills and other necessary houses; in purchasing domestic

animals, and farming utensils and acquiring a knowledge

of the mechanic arts.

In testimony whereof, the commissioner and the chiefs,

head men, and people, whose names are hereto

annexed, being duly authorized, have hereunto set

their hands, and affixed their respective seals, at the

time and place above mentioned.

R. H. Gillet,

Commissioner.

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Noh-sok-dah, or Jim Jones, Ho-ca-ga-was, or Jacob Bennet,

Shaw-neh-dik, or William Johnson, On-di-heh-or, or John Bennet,

Gaw-neh-do-au-ok, or Reuben Wis-ha-noa-nent, or Seneca White,

Pierce Ha-dya-no-deh, or Maris Pierce,

Shaw-go-nes-goh-sha-oh, or Yoh-dih-doh, or David White,

Morris Halitown, James Shongo,

Gus-wa-no-oh, or George Ka-non-da-gyh, or William Cass,

Big Deer,

Tuscaroras.

Ka-nat-soyh, or Nicholas Cusick, Ju-hu-ru-at-kak, or John Pattorson,

Sacharissa, or William Chew, O-tah-guau-nas-wa, or Samuel

Kaw-we-ah-ka, or William Mt. Jacobs,

Pleasant, Ka-noh-sa-ta, or James Anthony,

Kaw-ra-a-rock-ka, or John Fox, Gou-ro-quan, or Peter Elm,

Geu-ma, or James Cusick, Tu-nak-she-a-han, or Daniel Peter

Witnesses—James Stryker, Sub-agent, Six Nations,

New York Indians. Nathaniel T. Strong, United States’

Interpreter, N.Y. agency. H.B. Potter. Orlando Allen.

H.P. Wilcox. Charles H. Allen. Horatio Jones. Spencer

M. Cone. W.W. Jones. J.F. Schermerhorn. Josiah

Trowbridge.

To the Indian names are subjoined a mark and seal.

Senecas

Dao-nepho-gah, or Little Johnson, Joh-que-ya-suse, or Samuel

Da-ga-o-gess, or Daniel Twoguns, Gordon,

Geo-odowa-nah, or Captain Gua-nu-oh-doh, or Thompson S.

Pollard, Harris,

_Joh-nes-he-dih, or James Gau-geh-queh-doh, or George

Stevenson, Jimeson,

Hure-hau-stock, or Captain Ni-ga-jos-a, or Samuel Wilson,

Strong, Jo-on-da-goh, or John Seneca.

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So-ne-a-ge, or Captain Snow Shaw-go-za-sof-hog, or Jacob

Hon-non-de-uh, or Nathaniel T. Jameson

Strong, Shau-gau-nos-es-tip, or

Nuh-joh-gau-eh,

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