ELLENBAST v. Unkechaug Indian Nation of Poospatuck Indians, respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Michael ELLENBAST, appellant, v. Jesse WATKINS, etc., et al., defendants, Unkechaug Indian Nation of Poospatuck Indians, respondent.

Decided: September 26, 2006

GABRIEL M. KRAUSMAN, J.P., WILLIAM F. MASTRO, ROBERT A. SPOLZINO, and JOSEPH COVELLO, JJ. Stanley E. Orzechowski, P.C., St. James, N.Y., for appellant. Eric I. Prusan, Mineola, N.Y., for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated February 4, 2004, which granted the motion of the defendant Unkechaug Indian Nation of Poospatuck Indians to dismiss the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

 Contrary to the plaintiff's contention, it is not necessary for an Indian tribe to have attained federal recognition in order to successfully assert its sovereign immunity from suit, so long as the tribe has “tribal status” (Native Village of Tyonek v. Puckett, 957 F.2d 631, 634-635;  see Mashpee Tribe v. Secretary of the Interior, 820 F.2d 480, 482-483;  Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1065 n. 5;  New York v. Shinnecock Indian Nation, 400 F.Supp.2d 486).   The Poospatuck Indian tribe has been recognized by the State of New York pursuant to Indian Law § 150, and its history appears in both case law and the plaintiff's submissions (see Matter of Nelson, 68 Misc.2d 614, 616, 327 N.Y.S.2d 774;  New York v. Shinnecock Indian Nation, supra ).

The Poospatuck Indian tribe meets the definition of a tribe set forth in Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358, 45 L.Ed. 521, and therefore cannot be sued in New York courts without its consent (see Kiowa Tribe of Oklahoma v. Manufacturing Tech., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981;  Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 891, 106 S.Ct. 2305, 90 L.Ed.2d 881;  Matter of Ransom v. St. Regis Mohawk Educ. and Comm. Fund, 86 N.Y.2d 553, 560, 635 N.Y.S.2d 116, 658 N.E.2d 989).   No waiver of sovereign immunity occurred here, and the Supreme Court properly dismissed the complaint insofar as asserted against the tribe for lack of subject matter jurisdiction (see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106;  Matter of Ransom v. St. Regis Mohawk Educ. and Comm. Fund, supra at 561, 635 N.Y.S.2d 116, 658 N.E.2d 989).

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