# Appendix — Fluent v. Salamanca Indian Lease Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2208%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 502 U.S. 818 ## Text - née Court, U.S 99-1889 rit sem oO. 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 .. la 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 la 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 2a 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. 3a 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 da 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. 5a 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 6a $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. 7a 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. | 8a 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). 9a 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. a 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. GO ee ee ee ory ANG Ls | fa ON SA 2-9 (42p30 Buljnpayrs Aq -w :138 U39q jeadde jo jep jwawndie StH “30u Aym wieydxa ‘on 5] ((QNLZ F/NY 1NIND puor2g 225) ON 2 SA 2 V/N iyonow siys so; AEP UINIIs prisanbay P22U s1Buiuiy> jesdde paipodxa PINOM (Ajuo suonow aatuoisqngs) uri 03 uotaotpstint ony @ ny dv yy 225) ON 3 SA 2 (P2ISIp lUsWNBse }es0 5} ON &) 5A O (MOj9q spew uraq J9']34 105 Isanbas seqzy ON DC 590A CPPI92j JF UIIQ J>IAIIS SePY IW3ddV¥ ONIGN3d SNOILONNIPNI NG %A 0 iP2uleIgo us2q “Gg ? 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O iPoureigo u22q i1y8nos u2x29qQ 06V 12euNod Rursoddo jo 1u2sUO> TEL ZOZ7T AACA MON SOTEF ING JS UTPW 867 “Td TeAPP4IFD OOOT ATYON ¥ NOWVG uemetTo) *y Jajstuuar (aso. fo 23104) ur Aouson fo pun waif (aso) fo a3sny2 ur A aasue . moj fo ou Jai pup ssauppo ‘awoy) > ASNNOD ONISOddO fo puo usaf mo] fo ou -Ja1 pun ssasppo ‘awon) :A@ NOILOW ajith 12045 257 a9otTpnt qns st Teaddy aTtym ond Snjeqs supuyeqjurew uorqountuy wonow fo 2d4} 21015 NOILOW JO 3901LON aeywman 129'OO NVIGNI VONVWVTVS ‘A INANTA 9802 - T6 *ZTAEPTIIe artqaoddns e Aq petuedmoooe LINDUID GNOOFS IHL 4O4 oq sum ToTjou Wed sivaddy jO LINOD SIBIS Pou) = | JOWd 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, v. 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. (c) A number of legislative changes are in 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, v. 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, v. 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 a 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. ie 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, v. 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, v. 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. ll 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, becau [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2208%3A2. Public record. Not legal advice.