Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 1 of 14. Plaintiff, JOAN PETERS, by and through her attorneys, Rupp, Baase, Pfalzgraf, PARTIES

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1 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 1 of 14 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK JOAN PETERS Plaintiff, COMPLAINT Civ. No.: HONORABLE ROBERT C. NOONAN, NEW YQRK STATE ACTING SUPREME COURT JUSTICE, COUNTY OF GENESEE AND GENESEE COUNTY COURT AND SURROGATE COURT JUDGE Plaintiff, JOAN PETERS, by and through her attorneys, Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC as and for her Complaint against Defendant, HONORABLE ROBERT C. NOONAN, NEW YORK STATE ACTING SUPREME COURT JUSTICE, COUNTY OF GENESEE AND GENESEE COUNTY COURT AND SURROGATE COURT JUDGE alleges as follows: PARTIES 1. Plaintiff, Joan Peters ("Plaintiff '), is a duly enrolled member of the Tonawanda Band of Senecas ("the Nation") residing at all relevant times on the territory of the Nation located within the external boundaries of Genesee County in the State of New York. 2. Defendant, Honorable Robert C. Noonan is an Acting Justice of the New York State Supreme Court, Genesee County and Genesee County Court and Surrogate Court Judge (Acting Justice Noonan is referred to hereinafter as "Defendant").

2 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 2 of 14 JURISDICTION 3. This Court has original jurisdiction over this matter pursuant to Title 28 United States Code $31331 and This action arises under the Constitution, law, or treaties of the United States. This action further seeks to redress the deprivation, under color of state law, of plaintiff Joan Peters' rights and privileges secured to her by the Constitution, law and treaties of the United States, pursuant to Title 42 United States Code $1983. NATURE OF RELIEF SOUGHT IN THIS ACTION 4. This is an action for declaratory and injunctive relief in which the plaiatiff Joan Peters seeks io enjoin Eefeaclziit aacl the Courts of the St& of New York (I) fr~m assetizg.. zfid exercising j7u;sdiction ir, la re: Da~id C. Peters, Ge~esee Ceu~ty Sl~mgztite Ccmt, File Nn ("probate proceeding") with respect to certain property located on or located within the reservation lands of the the Nation in violation of the Nation's right of self government and exciusive authority over its internai affairs under the treaty of November i i, i794,7 Stat. 11, and other applicable treaties; the Constitution and laws of the United States; and the derivative right of Joan Peters, a tribal member of the Tonawanda Band of Senecas, to be ruled by the Nation; (2) from taking any further action in the probate proceeding with respect to property on or located within the reservation lands of the Nation; and (3) from enforcing or causing to be enforced any and all Orders previously issued in the probate proceeding with respect to property on or located within the reservation lands of the Nation.

3 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 3 of 14 FACTUAL ALLEGATIONS 5. Plaintiff is the mother of David C. Peters, who passed away on August 10, 6. Joan Peters is and was at all relevant times a duly enrolled member of the Natier, and resided QE ressryati~n lzn& of the Nation which 2re CGI~S~~PVTP,~ ~ d ~ fedcra!, r to constitute "Indian country." 7. David C. Peters was at all relevant times a duly enrolled member of the Nation and resided at the time of his death on reservation lands of the Nation which are considered under federal law to constitute "Indian country," and are also located within the external boundaries of Genesee County and the State of New York. PROPERTY LOCATED ON THE LANDS OF THE NATION 8. David C. Peters and his mother, Joan Peters, were involved in the management and operation of real estate and a family business known as "Arrowhawk Smoke Shop" located at 852 and 858 Bloomingdale Road, Basom, New York ("business premises"), which addresses are on reservation lands of the Nation, which are considered under federal law to constitute "Indian country," and are also located within the external boundaries of Genesee County and the State of New York.

4 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 4 of David C. Peters also resided at premises located at 7823 Sandhill Road, Basom, New York("residentia1 premises"), which address is on reservation lands of the Nation which are considered under federal law to constitute "Indian country," and are also located within the external boundaries of Genesee County and the State of New York. 10. Joan Peters has both claims of title and inheritance under the laws, usages and customs of the Nation to both the real estate and family business known as "Arrowhawk Smoke Shop" located at 852 and 858 Bloomingdale Road, Basom, New York, the business premises, and the residential premises. 1 1 I I. Joaii Peters has presented the zforeme~tionect claims of tit!e ar,d inheritance under the laws, usages and customs of the Nation to the appropriate authorities of the Nation and has been recognized by the appropriate authorities of the Nation as having asserted claims of title and inheritance to both the reai estate and famiiy business known as "Arrowhawk Smoke Shop," the business premises, and the residential premises. An investigation by the appropriate authorities of the Nation with respect to the residential premises is continuing. NATION STATUS AS FREE AND INDEPENDENT 12. The Nation is a federally recognized tribe, and is a separate and distinct tribe from the Seneca Nation of Indians, from which it separated in approximately 1848, and Seczme federally recognized as a distinct tribe in Stat. 735.

5 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 5 of The Nation, as a successor to the Seneca Nation of Indians with respect to its members, exercises powers of self-government over its territory and its members reserved to its predecessor, the Seneca Nation, by the Treaty of November 11, 1794,7 Stat. 44, by the 1857 Treaty by which it was separately recognized, 11 Stat. 735, by virtue of its retained sovereignty, and pursuant to the Constitution of the United States and federal law. 14. The Nation is in possession of a substantial tract of reservation lands located in the vicinity of Akron and Basom, New York and exercises full governmental authority, the right of self-government and exciusive jurisdiction, in accordance with its laws, customs and traditions, over such lands, which are considered "indian country" pursua~ito applicable federal law. 15. The aforementioned property of the business known as "Arrowhawk Smoke Shop", the business premises and the residential premises consists of tracts of land located on the reservation lands of the Nation. 16. Among the powers of self-government exercised by the Nation are the sole and exclusive power to determine the use of its land by its members and the sole and exclusive power to determine matters of inheritance with respect to property of its members on or located within the reservation lands of the Nation.

6 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 6 of Also, among the powers of self-government exercised by the Nation are the right to make their own laws and for its members to be ruled by them free of interference by the State of New York. 18. Among the rights and priviieges of the members of the Nation, including Joan Peters, are to enjoy the benefits of the sole and exclusive power of the Nation to determine the use of its land and the sole and exclusive power to determine matters of inheritance with respect to property on or located within the reservation lands of the Nation, and to be governed by the laws of the Nation free from interference by fhe State of New Yo&. 19. Pu'eiiher 25 U.S.C. $233, nor any treaty, siiii-~ie or law of the United Stztes, makes New York State laws of property, title or inheritance or the authority of the New York State Courts with respect to such matters applicable to the Indian country lands of the Nation. PROBATE PROCEEDINGS 20. Following the death of David C. Peters, a will was offered for probate in Surrogate's Court, Genesee County by Co-executors named therein, Thomas Peters, son of Joan Peters, and Donald C. Holmes. A true copy of that will is annexed hereto as Exhibit A. 21. Letters Testamentary were issued to the co-executors, Thomas Peters, son of plaintiff, and Donald Holmes, upon their application by the Surrogate's Court Genesee

7 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 7 of 14 County, on September 19,2011. A true copy of the letters testamentary and application for probate are annexed hereto as Exhibit B. 22. Among the matters addressed in the will were (1) items of property located within the State of New York, but outside the reservation lands of the Nation; (2) property located in other states; and (3) property on or located within the reservation lands of the Nation. 23. On or about December 22,20i i, Acting Justice Robert C. Noonan of the New Yo& State Supreme Coun, Genesee County; and Genesee C ~-~ty Coiii? and Sunogaie Court judge issued an Order to Show Cx~se directing "that the Co-Executors cease a ~d desist any conduct, business or activity which is in derogation of, and contradiction with any of the provisions of the Will" and that appearances with respect to further requested relief occur on January 17,2012. A true copy of that Order to Show Cause and supporting papers is annexed hereto and made a part hereof as Exhibit C. This Order to Show Cause was issued on the application of Coreen Thompson, daughter of David C. Peters and a beneficiary named in the probated will. This application and Order to Show Cause concerned the management and use of the "Arrowhawk Smoke Shop," the business premises and the residential premises. 24. On the return date of the Order to Show Cause, January 17,2012, counsel for Joan Peters, provided s~bmissions to Defendant, which, amocg cthes things, requested thzt the Court refer the matter of inheritance of property on or located within the reservation lands of

8 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 8 of 14 the Nation, category (3) listed above in paragraph 22, for disposition to the authority of the Nation due to its exclusive authority in such matters. A true copy of the submissions of counsel for Joan Peters is annexed hereto as Exhibit D. Defendant adjourned oral argument, consideration and decision on the pending motions and applications, and directed a further appearance on January 30, At a conference in chambers held on January 30,2012, Defendant directed that the matter be set down for the taking of proof before he would rule on the pending applications. Hearing dates for this purpose were scneduied to commence on June 18,2012. Both counsel for Coreen Thompson and counsel for plaintiff provided addiiioiial rcibmi~~i~fi~, which are annexed hereto as Exhibii E and F, rzspective!y. 26. Following the conference an additional application for relief by way of a Further Modified Temporary Restraining Order and a Modified Temporary Restraining Order on behalf of Coreen Thompson was submitted to Defendant on March 12,2012. A true copy of those submissions are annexed hereto as Exhibit G. 27. In response thereto, Defendant issued a Letter Order to counsel dated March 12, 2012 which directed, among other matters, that plaintiff file an intervenor appearance in that matter on or before March 31,2012 and that a hearing concerning the potential removal of the Co-Executors and az immediate allocation of the assets and profits of the business go forward on April 18,2012. A true copy this Letter Order is annexed hereto as Exhibit H.

9 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 9 of 14 INFRINGEMENT BY DEFENDANT UPON EXCLUSIVE AUTHORITY OF NATION IN PROBATE MATTERS 28. The Nation has exclusive jurisdiction to determine both the use of its reservation lands and the matter of inheritance of property on or located within the reservation lands of the Nation following the death of a tribal member on reservation lands pursuant to the Treaty of November 11, 1794, 7 Stat. 44, the 1857 Treaty, 11 Stat. 735; the supremacy and commerce clauses of the United States Constitution; and pursuant to applicable federal law. 29. In the probate proceeding foiiowing the death of a trihi?: ember who resided on the reservation lands of the Nation, Defendant has directed actions, issued Orders mc! threatens to direct further actions and issue further Orders with respect to property on or located within the reservation lands of the Nation that belongs to, is claimed by and is controlled by plaintiff. 30. Defendant has no right or authority to assert or exercise jurisdiction over property that belongs to, is claimed by and is controlled by plaintiff on or located within the reservation lands of the Nation in New York State Surrogate's Court as neither that Court nor any New York State Corn has subject matter jurisdiction to determine issues of title, probate or inheritance with respect to property on or located within the reservation lands of the Nation following the death of a tribal member who resided on the reservation lands of the Nation.

10 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 10 of Defendant has no right or authority to assert or exercise jurisdiction over property that belongs to, is claimed by and is controlled by plaintiff on or located within the reservation lands of the Nation in New York State Surrogate's Court as neither that Court nor any New York State Court has subject matter jurisdiction to determine title to or possession of real property located on the territory of the Nation pursuant to Title 25 United States Code which specifically provides that Congress has withheld from its cession of civil jurisdiction over Indians to New York any authority regarding the alienation of Indian Lands. 32. Defendant has no right or authority to assert or exercise jmisdi~iioii over property that beiongs to, is ciaimeci by and is controlled by plaintiff on or loczited withiiin the reservation lands of the Nation in New York State Surrogate's Court as neither that Court nor any New York State Court has subject matter jurisdiction to determine claims of inheritance which affect title to, inheritance of, or possession of property located on the territory of the Nation pursuant to Title 25 United States Code which specifically provides that Congress limits the civil jurisdiction over Indians to New York State Courts to only "civil actions or proceedings between Indians or between one or more Indians and any ofher person or persons" and a probate proceeding is not "between Indians or between one or more Indians" but concerns passing title to property via the authority of the State Surrogate Court znd Congress has not provided New York State Courts any authority to determine probate or inheritance of the property of Indians who have died while residing on reservation lands.

11 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 11 of Defendant has no right or authority to assert or exercise jurisdiction over property that belongs to, is claimed by and is controlled by plaintiff on or located within the reservation lands of the Nation in New York State Surrogate's Court as neither that Court nor any New York State Court has authority pursuant to claims of inheritance to affect title to or possession of property located on the territory of the Nation since such a determination would terminate or diminish the authority of the tribe over its internal affairs. VIOLATION BY DEFENDANT OF RIGHTS OF PLAINTIFF 34. Defendant's purported exercise of jurisdiction over propeny that belongs to, is ciaimed by and is controiied by plaintiff on or located within the reservatioii lands of the Nation constitutes a deprivation of the rights of plaintiff to &fie process of 1x Defendant's purported exercise of jurisdiction over property that belongs to, is claimed by and is controlled by plaintiff on or located within the reservation iands of the Nation constitutes a deprivation of the rights of plaintiff to her Native American treaty rights. 36. Defendants purported exercise of jurisdiction over property that belongs to, is claimed by and is controlled by plaintiff on or located within the reservation lands of the Nation constitutes a violation of the Commerce Clause of the Constitution of the United States. 37. Defendant's purported exercise of jurisdiction over property that belongs to, is claimed by and is controlled by plaintiff on or located within the reservation lands of the

12 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 12 of 14 Nation constitutes a violation of the Indian Commerce Clause of the Constitution of the United States. 38. Defendant's purported exercise of jurisdiction over property that belongs to, is claimed by and is controlled by plaintiff on or located within the reservation lands of the Nation constitutes a deprivation of the rights of plaintiff to equal protection under the law. 39. Defendant's purported exercise of jurisdiction over property that belongs to, is claimed by and is controlled by plaintiff on or iocated within the reservation lands of the Nation constitutes a deprivation of fne rights of plaintiff to be governed by the laws of the iu'ation. 40. Defendant's purported exercise of jurisdiction over property on or located within the reservation lands of the Nation pursuant to claims of inheritance exposes plaintiff to the risk of incarceration, fines andlor deprivation of property and inheritance rights. 41. As a result of Defendant's assertion and exercise of jurisdiction in connection with the Surrogate Court action, and issuance of Orders in that action, plaintiff has been deprived of and will continue to be deprived, under color of state law, of the rights and privileges secured to her by the Constitution, law and treaties of the United States in violation of 42 U.S.C. $ 1983.

13 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 13 of Joan Peters has no adequate remedy at law because the damages that have been or will be sustained are not readily susceptible of monetary determination, the rights of the plaintiff are unique and should be specifically protected, and plaintiff is at risk of incarceration. for the following relief: RELIEF SOUGHT WHEREFORE, plaintiff, Joan Peters respectfully seeks judgment in this action a. Declaring that the defendant and the Genesee County Surrogate Court have no right or authority to exercise ~urisdiction over property on or iocated within the reservation iands of the Tonawanda Band of Senecas pursuant to claims of i~heritance in the Surrogate Court action now pending in that Court; b. Temporarily and permanently enjoining the defendant and the Genesee County Surrogate Court from exercising any further jurisdiction over property on or located within the reservation lands of the Tonawanda Band of Senecas pursuant to claims of inheritance in the Surrogate Court action now pending in that Court; c. Temporarily and permanently enjoining the defendant and the Genesee County Surrogate Court from enforcing or causing to be enforced any and all Orders previously issued in the probate proceeding with respect to property on or located within the reservation lands of the Nation in the Surrogate Court action now pending in that Court; d. Awarding such other injunctive relief as is necessary to protect the rights declared by this Court;

14 Case 1:12-cv RJA Document 1 Filed 03/22/12 Page 14 of 14 e. Awarding reasonable attorneys' fees and expenses incurred in this action; and f. Awarding such other and further relief as is just and equitable. Dated: March 20,2012 Buffalo, New York RUPP, BAASE, PF'ALZGRAF, CUNNINGHAM & COPPOLA LLC Attornevs for Plaintiff R ii: -J Mic 1600 ~ ibert~ Building Buffalo, New York (716) ruppbaase.com