Bowen v. Doyle

880 F. Supp. 99

Dennis J. BOWEN, Sr., Individually and as President of the Seneca Nation of Indians, Plaintiff, v. Vincent E. DOYLE, Jr., Penny M. Wolfgang, Justices, New York State Supreme Court, Defendants Ross L. John, Sr., Charles L. Ballagh, Linda Doxtator, Robert Kenjockety, Jr., Richard Jimerson, Arthur W. John, Rickey Armstrong, Sr., Karen Bucktooth, Pauline Redeye, Marsha Thompson Barnes, Geraldine Memmo and Maxine Jimerson, Defendants-Intervenors.

No. 95-CV-0043A.

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

February 27, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael A. Brady, Hagerty & Brady, Buffalo, NY, Douglas B.L. Endreson, Sonosky, Chambers & Sachse, Washington, DC, for plaintiff.

Peter Sullivan, Asst. New York State Atty. Gen. (Dennis C. Vacco, Atty. Gen., of counsel), Buffalo, NY, for State defendants.

Joseph F. Crangle, Anthony J. Colucci, Jr., Block & Colucci, Buffalo, NY, Hans Walker, Jr., Hobbs, Straus, Dean & Wilder, Washington, DC, for defendants-intervenors.

DECISION AND ORDER

ARCARA, District Judge.

INTRODUCTION

This is an action for declaratory and injunctive relief, pursuant to 42 U.S.C. § 1983, brought by Dennis J. Bowen, Sr. ("Bowen"), in both his individual capacity and in his capacity as the President of the Seneca Nation of Indians (the "Nation"), to enjoin Justices Vincent E. Doyle, Jr. and Penny M. Wolfgang of the New York State Supreme Court (the "State Defendants") from asserting and exercising jurisdiction over an action currently before them captioned Ross L. John, Sr., et al. v. Dennis J. Bowen, Index No. 1994/12582 (the "State Court action"). In the State Court action, several present and/or former officials of the Nation's government seek declaratory and injunctive relief against Bowen, alleging, inter alia, that he attempted to remove and replace certain members of the tribal council and to terminate certain appointed tribal officials from their positions, all in violation of the Constitution, laws, customs and traditions of the Nation.¹ The plaintiffs in the State Court action have moved to intervene as defendants-intervenors in this case.²

Currently before the Court is Bowen's motion for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a). A hearing on the preliminary injunction was held on February 16, 1995.³ After considering the evidence submitted at the hearing, reviewing the submissions of the parties and hearing argument from counsel, the Court grants Bowen's motion for a preliminary injunction.⁴ The following shall constitute the Court's findings of fact and conclusions of law in accordance with Fed.R.Civ.P. 52(a) and 65(d).

FINDINGS OF FACT

I. Structure of the Nation's Government

The Seneca Nation is a federally-recognized Indian tribe operating under a constitution originally adopted in 1848 (the "Constitution"). The Constitution replaced the traditional chief form of government with an elected representative democracy.

Under the Constitution, the Nation's government is divided into legislative, executive and judicial departments. The legislative power is vested in a tribal council of sixteen members (the "Council"). Council members are called Councillors of the Seneca Nation of Indians. Ten Councillors constitute a quorum for the transaction of business. The Councillors are elected for terms of four years. If a Councillor dies, resigns or is impeached, the President has the power to fill the vacancy by appointment. The Council has the power to make laws not inconsistent with the Constitution.

The executive power is vested in the President. The President is elected for a term of two years. The President presides over Council deliberations and has a vote therein. He also has the duty to ensure that laws applicable to the Nation are faithfully executed.

The judicial power of the Nation is vested in two Peacemakers Courts, two Surrogates Courts and a Court of Appeals.⁵ The Constitution provides that:

The judicial power shall extend to all cases arising under the Constitution, the customs or laws of the Nation, and to any case in which the Nation, a member of the Nation or any person or corporate entity residing on, organized on, or doing business on any of the Reservations shall be a party.

Each Peacemakers Court is comprised of three judges, any two of whom may hold Court and discharge all the duties of the Peacemakers Court. Each Surrogate's Court is comprised of one judge. Both Peacemakers and Surrogate Judges are elected for terms of four years.

All determinations and decisions of the Peacemakers and Surrogates Courts are subject to appeal to the Court of Appeals. The Court of Appeals is comprised of six judges, any three of whom may hear an appeal. Court of Appeals Judges are elected for terms of four years.

All determinations of the Court of Appeals are subject to appeal to the Council upon the granting of a writ of permission by a vote of not less than seven Councillors. Such an appeal, if permitted, must be heard by at least a quorum of the Council. If the decision of the Court of Appeals is not appealed to the Council, it becomes final and no other court or subsequently elected Council may reopen, rehear, reverse or affirm the decision of the Court of Appeals.

II. The Peacemakers Court Action

On November 1, 1994, Dennis J. Bowen, Sr. was elected President of the Nation. He took office on November 8, 1994.

On November 11, 1994, President Bowen filed an action in the Peacemakers Court (the "Peacemakers Court action") seeking to enjoin Ross John, Sr. from acting or sitting as a member of the Nation's Council.⁶ Ross John, Sr. was appointed to his position on the Council by the immediate past President, Barry E. Snyder, Sr.⁷ Bowen claims that Ross John, Sr.'s appointment violated the Constitution and is, therefore, null and void.⁸ On the same day, November 11, 1994, the Peacemakers Court issued an order enjoining Ross John, Sr. from acting or sitting as a member of the Council until further order of the Court.

On November 13, 1994, Ross John, Sr. moved the Peacemakers Court to vacate the November 11, 1994 Order. On November 14, 1994, a hearing on the motion to vacate was held. By Order dated November 18, 1994, the Peacemakers Court denied the motion to vacate and ordered that the November 11 Order remained in effect. A further hearing was scheduled for December 12, 1994.

On November 29, 1994, Tyrone LeRoy and Rosemary Patterson, two enrolled members of the Nation, requested and received permission to intervene as plaintiffs in the Peacemakers Court action. They filed an amended complaint which, in addition to the claims originally asserted by Bowen against Ross John, Sr., asserts claims against four new defendants: Arthur W. John, Maxine Jimerson, Geraldine Memmo and Susan Pierce. The amended complaint alleges that, on November 3, 1994, Arthur John was unlawfully appointed to the position of Councillor by the immediate past President, Barry Snyder, to fill the vacancy left after Councillor Adrian Stevens, who was elected Treasurer of the Nation on November 1, 1994, resigned from the Council.⁹ The amended complaint also alleges that Maxine Jimerson, Chief Executive Officer of the Seneca Nation Gaming Enterprises; Geraldine Memmo, Director of Human Resources; and Susan Pierce, Director of the Area Office of the Aging, were each terminated from their respective positions, but continue to hold themselves out as Nation officials. The amended complaint seeks to enjoin Ross John, Sr. and Arthur John from serving as Councillors and to restrain Maxine Jimerson, Geraldine Memmo and Susan Pierce from continuing to act in their respective positions.

On the same day, November 29, 1994, the Peacemakers Court issued an Order enjoining Arthur John from acting as a Councillor and the other three new defendants from acting in their respective governmental positions. The defendants subsequently moved to dismiss the Peacemakers Court action, but their motion was denied in an Order dated January 6, 1995. The January 6 Order also provided that the November 29 Order was still in effect and that President Bowen was to enforce the Order.

On December 9, 1994, defendants appealed the Peacemakers Court's November 18 and November 29 Orders to the Nation's Court of Appeals. The action was not stayed pending the appeal and proceedings have continued in the Peacemakers Court. On December 15, 1994, default judgment was entered against Ross John, Sr. for failure to answer the complaint. The claims against the other defendants are awaiting trial. The appeal is also pending.

III. The State Court Action

On November 18, 1994, the same day the Peacemakers Court denied Ross John, Sr.'s motion to vacate its November 11, 1994 Order, Ross John, Sr., along with twelve other enrolled members of the Nation, brought an action for declaratory and injunctive relief in New York State Supreme Court against Bowen, Ross L. John, Sr., et al. v. Dennis J. Bowen, Index No. 1994/12582.¹⁰ The suit is purportedly brought against Bowen in his individual capacity. The State Court complaint does not mention the existence of the Peacemakers Court action. The State Court action was assigned to Justice Doyle.

The State Court complaint alleges that Bowen, acting outside the scope of his authority, violated the Nation's Constitution and laws by: (1) attempting to remove and replace Ross John, Sr. as a Councillor; (2) attempting to remove and replace Arthur John as a Councillor; (3) seizing and occupying one of the Nation's administrative buildings thereby preventing Nation officials from conducting business; (4) attempting to terminate the Nation's Human Resource Director Geraldine Memmo; (5) attempting to terminate Gaming Enterprises CEO Maxine Jimerson; (6) conducting an improper Council meeting on November 12, 1994¹¹; (7) attempting to rescind the Nation's Governmental Law...