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OFFICIALS OF A NATIVE AMERICAN NATION CAN BE SUED IN NEW YORK STATE COURTS FOR OFF-RESERVATION ACTIONS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, over a partial concurrence and partial dissent, determined the trustees (officials) of a sovereign Native American nation may be sued in New York State courts for their off-reservation actions. Here the defendants constructed billboards within a highway right of way which traversed land owned by the Nation. The opinion addresses an issue of first impression and is too complex and detailed to fairly summarize here:

In March and April 2019, the defendants allegedly had trees cut and removed from within the highway right-of-way, without obtaining a work permit from the DOT, and the DOT allegedly issued two stop work orders to the defendants’ alleged contractors. Thereafter, the defendants allegedly began trenching and placed large equipment, a pile of stones, and support piles within the highway right-of-way, without a work permit from the DOT. The DOT allegedly issued another stop work order and a cease and desist letter to the defendants. The plaintiffs alleged that the defendants ignored the stop work orders and the cease and desist letter. * * *

… [N]otwithstanding sovereign immunity, Native Americans “going beyond reservation boundaries are subject to any generally applicable state law,” “[u]nless federal law provides differently” … . Here, the plaintiffs alleged that the structures are being constructed upon the subject property, over which the State has a permanent easement. The plaintiffs further alleged that the subject property is not aboriginal or sovereign land of the Nation, the Nation owns the subject property in fee simple, and the subject property is not part of the Reservation nor held in trust by the federal government. Thus, according to the plaintiffs, the Trustee defendants have engaged in conduct “beyond reservation boundaries,” and they are subject to generally applicable state laws … . Commissioner of the N.Y. State Dept. of Transp. v Polite, 2024 NY Slip Op 06023, Second Dept 12-4-24

Practice Point: Officials (trustees) of a Native American Nation can be sued in New York State courts for off-reservation actions. Here the trustees constructed billboards on a highway right of way which traversed land owned by the Nation.

 

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