Neither Mohawk Indian governmental nor sovereignty rights are violated by the application of a provision of New York's "scaffold law" to injuries a worker suffered during a fall while working on a privately owned building on the St. Regis Mohawk Reservation, a state appeals court has ruled.
Other upstate New York appeals court panels also held recently that a major Tennessee-based seller of cigarettes is liable for more than $1 million in state taxes for under-reporting income he made from tobacco sales to American Indian vendors in New York and that two upstate counties illegally closed Cayuga Indian cigarette stores and seized their products last year in New York's Seneca and Cayuga counties for non-payment of tobacco taxes.
Attorneys say the three Appellate Division rulings last week reflect the growing litigation related to American Indian lands and tribal issues in both state and federal courts in New York.
"The Indian law has flowered from nothing to a whole discreet area of practice as a result of the rise of tribal sovereignty," said Cornelius D. Murray of O'Connell & Aronowitz in Albany, N.Y., a litigator in several gaming cases involving Indian nations. "It has raised a whole host of thorny legal questions that don't easily resolve because there is no coherent structure to Indian law. It is evolving and it doesn't have the same kind of precedents that other areas of the law have."
Murray said by "Indian law" he means federal and state laws as they apply to American Indians and Indian nations and also to tribal laws that have developed within the nations themselves.
Nearly every case involving Indian nations ultimately touches in one way or another on the question of whether they, like the state and federal governments, have sovereign immunity against being sued without their consent.
David Schraver of Nixon Peabody in Rochester, N.Y., said the first Indian-related cases began appearing in the 1970s with land claims. He said the litigation has proliferated since with the advent of disputes over Indian gaming, property taxes and sales taxes on cigarette and gasoline sold by Indian vendors.
Schraver said it is not always clear when Indian-related litigation will end up in federal courts or, like the three issues decided by Appellate Division panels last week, state courts.
"Indian law is primarily federal law, but when you get into issues of whether certain state laws apply to the conduct of certain tribes and their members, then you could end up in state courts," said Schraver, whose firm typically represents non-Indian governments in disputes with tribes. "And if they get through state courts, then it could get to the U.S. Supreme Court, if they grant cert."
An attorney for an Indian nation that lost in one Appellate Division department thinks he has just such a case.
A Third Department panel ruled in Alexander v. Hart, 505694, that an injured worker is not precluded from alleging a violation of the so-called scaffold law, Labor Law §§240 and 241, simply because the worker's fall took place on Indian land. Injured worker Roger Alexander alleged his injuries were suffered when he fell from a ladder while working on the roof of a fitness center on the St. Regis Mohawk Reservation in Franklin County.
Justice Anthony T. Kane wrote that Congress allows state courts to exert state jurisdiction over civil actions if no state or federal laws have precluded state action. Since no St. Regis Mohawk tribal law pertains to liability for injured workers, "we apply the civil laws of New York to this action," Justice Kane wrote.
As for the Indian nation's sovereign right to self-government, the panel noted that the scaffold law action was brought by Alexander against Fabian M. Hart, the owner of the fitness center building, and not the Mohawk nation. The fact that Hart is a Mohawk who lives on the reservation does not make him exempt from the action, the court held.
"Jurisdiction is proper in this action involving statutes aimed at protecting workers, as the statutes and this action address commercial and tort matters between individual civil litigants and do not implicate the St. Regis Mohawk nation's government or sovereign rights," Justice Kane wrote, citing Seneca v. Seneca, 293 AD2d 56 (2002).
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