Case 1:12-cv RJA Document 14 Filed 04/18/12 Page 1 of 8

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1 Case 1:12-cv RJA Document 14 Filed 04/18/12 Page 1 of 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK JOAN PETERS, -vs- Plaintiff, 12-CV-0234(A) HONORABLE ROBERT C. NOONAN, NEW YORK STATE ACTING SUPREME COURT JUSTICE, COUNTY OF GENESEE AND GENESEE COUNTY COURT AND SURROGATE COURT JUDGE Defendant. DEFENDANT'S SUPPLEMENTAL MEMORANDUM OF LAW ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants BY: S/David J. Sleight DAVID J. SLEIGHT Assistant Attorney General of Counsel Main Place Tower, Suite 300A Buffalo, New York (716) David.Sleight@ag.ny.gov

2 Case 1:12-cv RJA Document 14 Filed 04/18/12 Page 2 of 8 PRELIMINARY STATEMENT Plaintiff commenced this action seeking both declaratory and injunctive relief by the filing of a Summons and Complaint on March 22, 2012 (Docket No. 1). Plaintiff seeks a declaration from this Court that the Genesee County Surrogate's Court ("Surrogate's Court) has no right to exercise jurisdiction over an Indian decedent's real and personal property located on the territory of the Tonawanda Band of Senecas ("Tonawanda Band"). On March 23, 2012, plaintiff filed a motion seeking to temporarily and permanently enjoin the Surrogate's Court from exercising jurisdiction over decedent's property located on the territory of the Tonawanda Band, and to temporarily and permanently enjoin the Surrogate's Court from enforcing any prior orders related to decedent's property located on the territory of the Tonawanda Band (Docket Nos. 4 and 5). On April 5, 2012, defendant submitted papers in opposition to plaintiff's motion for temporary and permanent relief, and also cross moved to dismiss the Complaint (Docket Nos. 8 and 9). By Text Order dated April 6, 2012, the Court ordered the parties to appear for a status conference on April 10, 2012 (Docket No. 10). At the status conference on April 10th, the Court outlined various issues that it wanted further briefing on from the parties. The Court subsequently memorialized its request for further briefing in a Text Order dated April 10, This Supplemental Memorandum of Law is submitted in response to the Court's request that defendant provide additional briefing.

3 Case 1:12-cv RJA Document 14 Filed 04/18/12 Page 3 of 8 ARGUMENT POINT I DEFENDANT HAS JURISDICTION AND THE AUTHORITY TO IMPOSE WHATEVER REMEDIES ARE NECESSARY TO RESOLVE DECEDENT'S ESTATE One of the issues the Court raised at the status conference on April 10th was the adequacy of the remedies at law available to the Surrogate's Court. The Court's Text Order directs that defendant provide "a description of the potential remedies at law available to the plaintiff in the Genesee County Surrogates Court." We submit that the Surrogate's Court has available to it whatever legal remedies are necessary for it to resolve all issues related to the disposition of decedent's estate. We start from the premise, posited in our initial submission, that the matter pending in the Surrogates Court is a private civil claim between Indians that does not implicate the Tonawanda Band's right to self-government and jurisdiction over its internal affairs. Thus, pursuant to 25 U.S.C. 233 and N.Y. Indian Law 5, the Surrogates Court has original concurrent subject matter jurisdiction over the dispute pending before it. The Surrogate's Court Procedure Act ("SCPA") gives New York Surrogate's Courts broad general authority " to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents." N.Y. SCPA 201. The power conferred by the statute is to be broadly construed in order that its manifest policy should not be thwarted. Raymond v. Davis' Estate, 248 N.Y. 67 (1928). Thus, a New York Surrogate's Court has the jurisdiction to

4 Case 1:12-cv RJA Document 14 Filed 04/18/12 Page 4 of 8 determine disputes regarding title to personal property. See In re Akin's Estate, 248 N.Y. 202 (1928) (Surrogate's Court has the jurisdiction to determine title to real property despite adverse claim of title); Estate of Bauman, 140 Misc.2d 412 (Sur. Ct., N.Y. Co. 1988) (Surrogate's Court had jurisdiction to determine title to artwork located out of State). Similarly, New York Surrogate's Courts have jurisdiction to determine the title to real property. See Estate of Carr, 113 Misc.2d 818 (Sur. Ct., N.Y. Co. 1982) (Surrogate's Court had jurisdiction to adjudicate title to real property outside of State); Shearn v. Lord, 16 Misc.2d 224 (Sup. Ct., N.Y. Co. 1956) aff'd 3 A.D.2d 823 (1 st Dept. 1957) (Surrogate's Court had jurisdiction to adjudicate title to real property outside of County). Of particular import to this matter, New York courts, both Supreme Court and Surrogate's Court, have the jurisdiction to determine disputes regarding the possession of land located on Indian reservations. See Mt. Pleasant v. Patterson, 276 A.D. 819 (4 th Dept. 1949); In re Printup's Estate, 121 A.D. 322 (4 th Dept. 1907); In re Terrance's Estate, 32 N.Y.S.2d 540 (Sur. Ct., Franklin Co.); George v. Pierce, 85 Misc. 105 (Sup. Ct., Onondaga Co. 1914); Hatch v. Luckman, 64 Misc. 508 (Sup. Ct., Erie Co 1909). In light of the above-referenced authorities, it is clear that the Surrogate's Court has the jurisdiction and authority to fashion whatever remedy is necessary to dispose of decedent's estate, including determining the ownership of real property located on Indian land. Admittedly, there is a dispute between plaintiff and parties to the Surrogate's Court proceeding regarding decedent's purported ownership of real property located on the Tonawanda Band's land. Plaintiff maintains that title to lands on the Tonawanda Band's land is determined by custom and usage, and the other parties maintain that it is governed by New York law. Defendant takes no position here regarding who is correct. But, what

5 Case 1:12-cv RJA Document 14 Filed 04/18/12 Page 5 of 8 is clear, we submit, is that defendant has the jurisdiction and authority to resolve the issue of what rule governs and to apply that rule to resolve the dispute between plaintiff and the other parties. See Mt. Pleasant, 276 A.D. at 819; Bennett v. Fink Construction Co., 47 Misc.2d 283 (Sup. Ct., Erie Co. 1965); Hatch, 64 Misc. at 508; George, 85 Misc. at 105. POINT II THE RELEVANT FACTORS WEIGH IN FAVOR OF ABSTENTION The other issue the Court asked that defendant address was how the abstention doctrine applied to this case. In our initial Memorandum of Law, we discuss the abstention doctrine under both the Supreme Court's ruling in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) and Brillhart v. Excess Insurance Company, 316 U.S. 491 (1942). Court's employee a different analysis under each ruling. Under Colorado River, courts weigh the following factors: "(1) whether the controversy involves a res over which one of the courts has assumed jurisdiction, (2) whether the federal forum is less inconvenient than the other for the parties, (3) whether staying or dismissing the federal action will avoid piecemeal litigation, (4) the order in which the actions were filed, and whether proceedings have advanced more in one forum than in the other, (5) whether federal law provides the rule of decision, and (6) whether the state procedures are adequate to protect the plaintiff's federal rights. Woodford v. Cmty Action Agency of Greene County, 239 F.3d 517, 522 (2d Cir.2001). Brillhart did not provide a catalog of factors; rather, it merely provided guidance: "whether the claims before it 'can better be settled' in the state proceedings, the district court should examine the scope of the parallel state litigation and the nature of the defenses available there.' It

6 Case 1:12-cv RJA Document 14 Filed 04/18/12 Page 6 of 8 should also consider 'whether the claims of all parties in interest can satisfactorily be adjudicated in that [state] proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding, etc.'" Youell v. Exxon, 74 F.3d 373, (2 nd Cir. 1996) (citations omitted). Under either analysis, the balance of factors weighs in favor of abstention. Under Colorado River: the Surrogate's Court has jurisdiction over decedents disputed property; allowing the Surrogate's Court to determine whether it has jurisdiction to determine ownership of Indian land will avoid piecemeal litigation; the Surrogate's Court proceeding was filed first; federal law does not provide the rule of decision, state law does; and, the dispute between plaintiff and decedent's other heirs and descendants does not involve a federal right. Under Brillhart: the issue before this Court (i.e. whether the Surrogate's Court has jurisdiction to determine the ownership of Indian land) can be decided by the Surrogate's Court; the claims of all interested parties can be adjudicated in the Surrogate's Court proceeding; all interested parties but plaintiff, who refuses to submit to the jurisdiction of the Surrogate's Court, have been joined in the proceeding before it; and, as residents of the State, all interested parties are amenable to process. Dated: Buffalo, New York April 18, 2012

7 Case 1:12-cv RJA Document 14 Filed 04/18/12 Page 7 of 8 Eric T. Schneiderman Attorney General of the State of New York Attorney for Defendant BY: /s/ David J. Sleight DAVID J. SLEIGHT Assistant Attorney General, of Counsel Main Place Tower, Suite 300A 350 Main Street Buffalo, NY (716) David.Sleight@ag.ny.gov

8 Case 1:12-cv RJA Document 14 Filed 04/18/12 Page 8 of 8 CERTIFICATE OF SERVICE I hereby certify that on April 18, 2012, I electronically filed the foregoing with the Clerk of the District Court using its CM/ECF system, which would then electronically notify the following CM/ECF participants on this case: Michael Feeley 1600 Liberty Building Buffalo, New York (716) DATED: Buffalo, New York April 18, 2012 ERIC T. SCHNEIDERMAN New York State Attorney General BY: S/David J. Sleight DAVID J. SLEIGHT Assistant Attorney General Of Counsel Main Place Towers 350 Main Street-Suite 300A Buffalo, New York (716) david.sleight@ag.ny.gov