HUNT CONSTRUCTION GROUP INC v. ONEIDA INDIAN NATION (2008)

Plaintiff commenced this action seeking damages resulting from the alleged breach by defendant, the owner of the Turning Stone Casino & Resort, of its construction contract with plaintiff.  Defendant moved to dismiss the complaint on, inter alia, the grounds that Supreme Court “lack [ed] ․ subject-matter jurisdiction and personal jurisdiction over [defendant] on the basis of sovereign immunity.”  We conclude that the court erred in denying the motion.

 It is well settled that “Indian tribes possess common-law sovereign immunity from suit akin to that enjoyed by other sovereigns” (Matter of Ransom v. St. Regis Mohawk Educ. & Community Fund, 86 N.Y.2d 553, 558, 635 N.Y.S.2d 116, 658 N.E.2d 989;  see generally Kiowa Tribe of Oklahoma v. Manufacturing Tech., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981;  Oklahoma Tax Commn. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112).  Absent an explicit waiver of sovereign immunity, an Indian tribe cannot be sued in either state or federal court (see generally Ransom, 86 N.Y.2d at 560–561, 635 N.Y.S.2d 116, 658 N.E.2d 989), and “waivers of immunity ‘are to be strictly construed in favor of the [t]ribe’ ” (id. at 561, 635 N.Y.S.2d 116, 658 N.E.2d 989).  It is undisputed that defendant is a federally recognized Indian tribe that enjoys sovereign immunity (see 70 Fed.Reg. 71194 [2005] ).  Here, however, section 4.9.9 of the contract provides in relevant part that defendant “hereby expressly, unequivocally, and irrevocably waives its sovereign immunity from suit solely for the limited purpose of enforcement of the terms of this Agreement ․ In conjunction with [defendant's] limited waiver of sovereign immunity, ․ [defendant] hereby consents to submit to personal jurisdiction of those courts of the State of New York and of the United States with competent subject matter jurisdiction located in the City of Syracuse, New York and the parties agree that all actions related to this Agreement shall be brought or defended in such courts ” (emphasis added).

 As defendant correctly notes, a sovereign's interest “ ‘encompasses not merely whether it may be sued, but where it may be sued’ ” (Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171, reh. denied 473 U.S. 926, 106 S.Ct. 18, 87 L.Ed.2d 696, quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67;  see Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 86–87).  Thus, a sovereign may place geographic limits on its waiver of sovereign immunity (see e.g. Stokes v. University of Tennessee at Martin, 737 S.W.2d 545, 546 [Tenn.1987], cert. denied 485 U.S. 935, 108 S.Ct. 1110, 99 L.Ed.2d 271).  Construing the waiver provision of the agreement in favor of defendant, as we must (see Ransom, 86 N.Y.2d at 561, 635 N.Y.S.2d 116, 658 N.E.2d 989), we conclude that defendant limited its waiver of sovereign immunity to courts located in the City of Syracuse, and thus this action commenced in Supreme Court, Oneida County is not encompassed by that limited waiver of sovereign immunity.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

MEMORANDUM: