Feroleto Law, Buffalo NY

Sovereign Immunity Grounds Do Not Always Apply

In Sue/Perior Concrete & Paving v. Lewiston Golf Course Corporation,  (4th Dept. 2013) the court held that “The central question on this appeal is whether defendant Lewiston Golf Course Corporation (LGCC), a corporation formed under the laws of the Seneca Nation of Indians (Nation or SNI), is protected by the Nation’s sovereign immunity. Contrary to the contention of defendants-appellants, we conclude that Supreme Court properly denied that part of their motion seeking to dismiss the first amended  complaint against LGCC on sovereign immunity grounds inasmuch as LGCC is not an “arm of the tribe” for purposes of sovereign immunity.”

The Court’ reasoning was that :

“NCIDA asserted that LGCC, through its predecessor Seneca Management Development Corporation (SMDC), “consistently held [itself] out as a profit making corporation, separate and independent from the [Nation].” According to NCIDA, in applying for tax exemptions and deferrals relative to the golf course project, LGCC did not “imply that it is an arm of the [Nation’s] government or that it is entitled to the protections of sovereign immunity. To the contrary, the application shows that the LGCC and the SMDC are separate and independent for[-]profit corporations intended to construct and operate a championship level golf course on non[-] native land to support tourism in the Niagara Region.” NCIDA thus contended that “LGCC is not entitled to the protections of sovereign immunity afforded to the [Nation].”

“The Court held that “the Council created SNFGC for the purpose of “developing, financing, operating and conducting the Nation’s gaming operations on its Niagara Falls Territory at the Niagara Falls Gaming Facility.” In creating the LGCC, the Council declared that, “in furtherance of the economic success of the Nation’s gaming operations, [SNFGC] has commenced development of a . . . golf course located in the Town of Lewiston, New York[, which]  will be developed and operated as an amenity to…SNFGC’s casino operations, the purpose of which amenities, is to enhance the overall success and profitability of the casino’s operations”

Therefore simply because a party may be a sovereign nation does not automatically exclude certain activities from civil litigation.