PIGOTT, J.
Defendant Lewiston Golf Course Corporation (Lewiston Golf) is an indirect, wholly owned subsidiary of the Seneca Nation of Indians, a federally recognized Indian tribe. We are asked to decide whether that corporation is protected from suit by the Seneca Nation's sovereign immunity. Applying the factors set out in Matter of Ransom v St. Regis Mohawk Educ. & Community Fund (86 N.Y.2d 553 [1995]), we hold that it is not.
In 2002, the Seneca Nation's legislative body, the Tribal Council, granted a corporate charter to Seneca Gaming Corporation (Seneca Gaming), under the laws of the Seneca Nation, to develop, finance, operate and maintain gaming facilities. Seneca Gaming is wholly owned by the Seneca Nation. In the same year, again under the laws of the Seneca Nation, the Tribal Council granted a corporate charter to Seneca Niagara Falls Gaming Corporation (Seneca Niagara), created as a wholly owned subsidiary of Seneca Gaming, to develop, finance, operate and conduct the business of the Nation's gaming operations in Niagara County specifically. Seneca Gaming and Seneca Niagara are two of the most financially successful revenue-producing assets of the Seneca Nation.
Lewiston Golf was incorporated in June 2007, under the laws of the Seneca Nation, as a wholly owned subsidiary of Seneca Niagara, to develop, finance, operate and conduct the business of an 18-hole golf course in the Town of Lewiston. The following month, it acquired real property from Seneca Niagara, on which to construct the golf course. The property is not part of any Indian reservation and is not sovereign land.
As Lewiston Golf's predecessor had explained in its application to Niagara County Industrial Development Agency for tax abatements and deferrals,
In resolving to authorize the creation of Lewiston Golf, the Tribal Council stated that
Lewiston Golf's charter describes in detail the nature of the relation between it and the Seneca Nation. The charter provides that
On the other hand, the Boards of Directors of Lewiston Golf, Seneca Gaming, and Seneca Niagara are identical, are appointed by the Tribal Council, and during this dispute were composed entirely of enrolled members of the Seneca Nation. Lewiston Golf, like Seneca Gaming and Seneca Niagara, is required by its
In the summer of 2007, plaintiff Sue/Perior Concrete & Paving, Inc. (Sue/Perior) entered into a contract with Lewiston Golf, whereby Sue/Perior would build a golf course on the property, for the sum of $12,700,000. However, the business relationship between Sue/Perior and Lewiston Golf deteriorated in 2009. Sue/Perior demanded payment of certain bills; Lewiston Golf insisted that Sue/Perior was seeking remuneration for work not done or exaggerating its costs. Sue/Perior filed mechanic's liens, the third of which is in the amount of $4,130,538, for materials furnished and labor performed.
Sue/Perior commenced this foreclosure action against Lewiston Golf and other defendants in June 2010, with respect to that mechanic's lien. Lewiston Golf counterclaimed for willfully exaggerated lien, fraud, breach of contract, and unjust enrichment. Sue/Perior subsequently amended its complaint to add additional defendants — Seneca Niagara, Seneca Gaming, and 15 corporate officers and directors — and to assert additional causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, quantum meruit, promissory estoppel, and fraud.
The Appellate Division affirmed Supreme Court's order, as modified in a manner not relevant here (109 A.D.3d 80 [4th Dept 2013]). In ruling that Lewiston Golf lacked sovereign immunity, the Appellate Division relied on our decision in Matter of Ransom. There, we set out factors for courts to consider when deciding whether a tribal subagency or a corporate entity affiliated with an Indian tribe is entitled to sovereign immunity, as the tribe itself is. The Appellate Division found that most of the Ransom factors, and in particular those that the Ransom court "characterized as the `[m]ore important[]' financial factors, weigh in favor of a determination that [Lewiston Golf] does not share in the Nation's sovereign immunity" (109 AD3d at 88, quoting Ransom, 86 NY2d at 559 [some brackets in Appellate Division opinion]). The Appellate Division noted, for example, that "[Lewiston Golf]'s charter clearly provides that [Lewiston Golf] has no power to bind or otherwise obligate the funds of the Nation" and that "the record is devoid of evidence that a lawsuit against [Lewiston Golf] would adversely impact the Nation's treasury either directly or indirectly" (109 AD3d at 91).
With respect to the non-financial factor comparing Lewiston Golf's purposes with those of the Nation, the Appellate Division found that statements by the Tribal Council and the documents Lewiston Golf submitted to the Industrial Development Agency in support of its request for economic assistance
Finally, the Appellate Division observed "that declining to extend sovereign immunity to [Lewiston Golf] under the circumstances of this case will not diminish the policies underlying tribal sovereign immunity.... Here, permitting [Lewiston Golf] to retreat behind the Nation's cloak of sovereign immunity after it held itself out as an independent, market-participating entity subject to the jurisdiction of the State of New York, including its courts, would discourage non-Indians from entering into business relationships with the Nation's corporations, which may well retard the Nation's economic growth and undermine one of the purposes of its sovereign immunity" (109 AD3d at 92 [internal quotation marks, citation and brackets omitted]).
The Appellate Division granted Lewiston Golf leave to appeal to this Court, certifying the question whether its order was properly made. We now affirm and answer the certified question in the affirmative.
Indian tribes possess the common-law immunity from suit traditionally enjoyed by sovereign powers, unless waived. In Matter of Ransom, we set out several factors
Applying these factors, we held in Ransom that the St. Regis Mohawk Education and Community Fund — a nonprofit corporation, organized under the District of Columbia Nonprofit Corporation Act, providing educational, health care, social and historical services to residents of the St. Regis Mohawk Reservation in Franklin County — was a tribal entity that enjoyed sovereign immunity from suit. We explained that "[t]he Fund was established to enhance the health, education and welfare of Tribe members, a function traditionally shouldered by tribal government. Additionally, the Fund received its resources from the Tribe, and the Tribe was designated by the Fund as the recipient of its funds and services. Critically, under its by-laws, the Fund's governing body may only be comprised of elected Chiefs of the Tribe. Thus, the Fund's provision of social services on behalf of and under the direct fiscal and administrative control of the Tribe renders it an entity so closely allied with and dependent upon the Tribe that it is entitled to the protection of tribal sovereign immunity" (id. at 560).
We begin our discussion of the present appeal with the functions or purposes factor. The question is whether Lewiston Golf's purposes are similar to, or serve, those of the Seneca Nation. The Appellate Division reasoned that Lewiston Golf's purposes are significantly different from those of tribal government,
Lewiston Golf and the dissent rely on Kiowa Tribe of Okla. v Manufacturing Technologies, Inc. (523 U.S. 751 [1998]), in which the Supreme Court of the United States held that "[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation" (523 US at 760). In Kiowa Tribe, a private party sued an Indian tribe for defaulting on a promissory note, and asked the courts to limit tribal immunity to suits involving conduct on reservations or involving noncommercial activities. The Supreme Court refused to create a "reservation" or a "commercial activity" exception to the doctrine of tribal sovereign immunity from suit. Recently, a sharply fractured Supreme Court declined to revisit that decision (see Michigan v Bay Mills Indian Community, 572 US ___, 134 S.Ct. 2024 [2014]).
Lewiston Golf contends that it is inconsistent with Kiowa Tribe to treat the fact that an Indian tribe's subsidiary engages primarily in commercial activities not located on the tribe's reservation as evidence that the subsidiary is not an "arm" of the tribe. We disagree. Kiowa and Bay Mills do not apply in the present appeal, because they concerned lawsuits against Indian tribes themselves, not against corporate affiliates of tribes. They do not illuminate questions concerning whether such an entity is an "arm" of the tribe. The United States Supreme Court has never held that corporations affiliated with an Indian tribe have sovereign immunity.
As the Appellate Division notes, the primary purpose of creating the golf course in Lewiston was to act as a regional economic engine and thereby serve the profit-making interests of the Seneca Nation's casino operations in the area. While this may result in more funds for government projects on the Seneca Nation's reservations and elsewhere that benefit members of the tribe, we agree with the Appellate Division that the purposes of Lewiston Golf were sufficiently different from tribal goals that they militate against Lewiston Golf's claim of sovereign immunity. However, the purposes factor of Ransom is not determinative, and we proceed to discuss the other criteria. While some of the remaining Ransom factors favor the conclusion that Lewiston Golf is protected by sovereign immunity, the most important ones strongly support the opposite conclusion.
It is true that Lewiston Golf was organized under tribal law, not federal law, and that Lewiston Golf's governing body is comprised of tribal officials. The Seneca Nation controls Lewiston Golf's Board of Directors, which is made up exclusively of enrolled members of the Nation appointed by the Tribal Council. Moreover, it is clear from the record that tribal officials exercise control over the administration or accounting activities of Lewiston Golf, and that the tribe's governing body has power to dismiss members of Lewiston Golf's governing body. Indeed, the Tribal Council has exclusive authority to remove members of Lewiston Golf's Board. These considerations indicate that Lewiston Golf is dependent on the Seneca Nation in a manner that might suggest it partakes in the Nation's sovereign immunity.
However, all the remaining Ransom factors, and particularly those that consider the financial relationship between the subsidiary or agency and the Indian nation, support the conclusion that Lewiston Golf lacks sovereign immunity.
First, the Seneca Nation does not have legal title or ownership of the golf course being developed by Lewiston Golf. Contrary to the Seneca Nation's contention, the question posed by this factor is not whether Lewiston Golf is owned by the tribe. Rather, the issue is whether the property used by Lewiston Golf is owned by the tribe, and the record leaves no room for doubt that the owner of the golf course is Lewiston Golf, not the Seneca Nation.
Next, and most significantly, the record firmly indicates the intent to ensure that a suit against Lewiston Golf will not impact the Seneca Nation's fiscal resources. The founding charter provided that no indebtedness incurred by it would "in any way involve assets of the Nation," which would "not be liable for the debts or obligations" incurred by Lewiston Golf. The charter stated that Lewiston Golf would have no power to allow "any right, lien, encumbrance or interest in or on any of the assets of the Nation." All the evidence in the record points to the conclusion that Lewiston Golf lacks the power to bind or obligate the funds of the Seneca Nation.
In response, Lewiston Golf does not deny that the statements in the charter have their ordinary meaning and that the Seneca Nation intended to create a corporation for whose debts it would not be liable. Lewiston Golf does not contend that the Seneca
Whether Lewiston Golf's revenues will become part of the Seneca Nation's resources, as Lewiston Golf emphasizes, is beside the point. The test, with respect to the financial relationship factors of Ransom, is not the indirect effects of any liability on the tribe's income, but rather whether the immediate obligations are assumed by the tribe. Here, the financial obligations were assumed by Lewiston Golf and any liability insurer, not by the Seneca Nation.
These financial relationship considerations are the most important of the Ransom factors, as we noted when we first set out the criteria (see Ransom, 86 NY2d at 559). In attributing such weight to them, we have taken into consideration federal precedent on the Eleventh Amendment immunity of States. While the sovereign immunity of an Indian tribe is not based on the Federal Constitution, it has in common with Eleventh Amendment immunity "a background of traditional ideas about the power and privileges of the sovereign" (Runyon v Association of Vil. Council Presidents, 84 P.3d 437, 440 n 12 [Alaska Sup Ct 2004]; see Thebo v Choctaw Tribe of Indians, 66 F 372, 376 [8th Cir 1895]). In considering whether an entity is an "arm" of an Indian tribe, the most significant factor is the effect on tribal treasuries, just as "the vulnerability of the State's purse" is considered "the most salient factor" in determinations of a State's Eleventh Amendment immunity (Hess v Port Authority Trans-Hudson Corporation, 513 U.S. 30, 48 [1994]).
If a judgment against a corporation created by an Indian tribe will not reach the tribe's assets, because the corporation lacks "the power to bind or obligate the funds of the tribe" (Ransom, 86 NY2d at 559 [internal quotation marks and brackets omitted]), then the corporation is not an "arm" of the tribe. However, if a tribe is legally responsible for a corporation's obligations, the tribe is "the real party in interest" (id. at 560). As the Supreme Court of Alaska has observed, in a thoughtful opinion, "a tribe might, for commercial purposes, wish to form a corporation exposed to suit in order to cultivate trust with business partners.... The tribes' use of the corporate form
The dissent's principal objection to our ruling is that lower courts have found that Seneca Gaming and Seneca Niagara have sovereign immunity (see dissenting op at 556-560, citing Sue/Perior Concrete & Paving, Inc., 99 A.D.3d 1203; Seneca Niagara Falls Gaming Corp., 2005 WL 3510348, 2005 Conn Super LEXIS 3295; Warren v United States, 859 F.Supp.2d 522 [WD NY 2012], affd 517 Fed Appx 54 [2d Cir 2013]; Myers v Seneca Niagara Casino, 488 F.Supp.2d 166 [ND NY 2006]). Neither this Court nor the United States Supreme Court has so held, and our decision today may imply the opposite. As noted above, the question whether a corporate affiliate of an Indian tribe is protected by the tribe's sovereign immunity has not been settled by the United States Supreme Court.
Alternatively, it could be argued that Seneca Gaming and Seneca Niagara are distinguishable from Lewiston Golf in that their purposes are more closely aligned with those of the Seneca Nation. In any case, that question is not before us, and the dissent simply begs the question, assuming — what has not been held by this Court or the Supreme Court — that Lewiston Golf's corporate parents have sovereign immunity.
In conclusion, we agree with the Appellate Division that the most significant Ransom factors count against sovereign immunity on the part of Lewiston Golf. Its ruling was proper. It is unnecessary for us to address the parties' remaining contentions.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
RIVERA, J. (dissenting).
The question on this appeal is whether a corporate subsidiary of a corporation owned and controlled by an Indian Tribe, and which exists solely for the economic benefit of the Tribe and its members, is immune from private suit based on the Tribe's sovereign immunity. I can find no rational legal basis to distinguish between the corporate parent, which is a recognized arm of the Tribe, and its subsidiary. Therefore, I would find the subsidiary is immune from suit.
The Seneca Nation of Indians (the Nation) is a sovereign Tribe, predating the creation of the United States, with its own government, laws and cultural identity (see Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 79 Fed Reg 4748-02 [2014]; Seneca Nation of Indians v State of New York, 26 F.Supp.2d 555, 560 [WD NY 1998], affd 178 F.3d 95 [2d Cir 1999]). As a tribal sovereign it provides its members with various health and
The Nation created the Seneca Gaming Corporation (Seneca Gaming) to "finance, develop, construct, operate, and maintain Nation Gaming Facilities." The Nation then created the Seneca Niagara Falls Gaming Corporation (Seneca Niagara Falls Gaming) as a subsidiary of Seneca Gaming, for purposes of "developing, financing, operating and conducting the business of the Nation Gaming Facility" on Nation territory located in Niagara County, New York.
The Nation decided to capitalize on the subsequent success of its gaming operations, and Seneca Niagara Falls Gaming commenced development of a golf course in the Town of Lewiston, New York in Niagara County. The Nation thereafter created the Lewiston Golf Course Corporation (Lewiston Golf) "as a separate legal entity, governmental instrumentality of the Nation, and wholly-owned subsidiary of [Seneca Niagara Falls Gaming], for the purpose of developing and operating the Lewiston Golf Course."
All three of the Nation's resolutions creating Seneca Gaming, Seneca Niagara Falls Gaming, and Lewiston Golf, and their respective corporate charters provide:
Lewiston Golf moved to dismiss the action, asserting sovereign immunity against suit as an arm of the Nation. Supreme Court and the Appellate Division both rejected this contention, and held that Lewiston Golf is not an arm of the Nation. The majority now agrees, and based on Matter of Ransom v St. Regis Mohawk Educ. & Community Fund (86 N.Y.2d 553 [1995]) concludes that because Lewiston Golf is without power to bind or obligate the Nation's funds it lacks a sufficient financial relationship with the Nation to entitle it to sovereign immunity.
I disagree with the majority that certain financial factors identified by this Court in Ransom, and as applied here, should be treated as outcome determinative of the question of the expanse of the Nation's sovereign immunity over its corporate subsidiary Lewiston Golf. Instead, our focus should be the purpose and corporate structure of Lewiston Golf. As a corporate entity created and chartered by the Nation, established to enhance the Nation's gaming operations for the purpose of benefitting the Nation's members, I would hold Lewiston Golf is clothed with the Nation's sovereign immunity.
Tribes are "`separate sovereigns pre-existing the [United States] Constitution'" (Michigan v Bay Mills Indian Community, 572 US ___, ___, 134 S.Ct. 2024, 2030 [2014], quoting Santa Clara Pueblo v Martinez, 436 U.S. 49, 56 [1978]), and possess "`common-law immunity from suit traditionally enjoyed by sovereign powers'" (id., quoting Santa Clara Pueblo, 436 US at 58). Indeed, "sovereign immunity [is] an inherent part of the concept of sovereignty and what it means to be a sovereign" (Breakthrough Mgt. Group, Inc. v Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1182 [10th Cir 2010]), and "is `a necessary corollary to Indian ... self-governance'" (Bay Mills Indian Community, 572 US at ___, 134 S Ct at 2030, quoting
The United States Supreme Court has broadly applied tribal sovereign immunity to extend to "suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off" Indian lands (Kiowa Tribe of Okla. v Manufacturing Technologies, Inc., 523 U.S. 751, 760 [1998]; see also Bay Mills Indian Community, 572 US at ___, 134 S Ct at 2030-2031). There are no exemptions for tribal commercial activity (see Cayuga Indian Nation of N.Y. v Seneca County, N.Y., 761 F.3d 218, 221 [2d Cir 2014]), and, thus, sovereign immunity extends to tribal business ventures (Oklahoma Tax Comm'n v Citizen Band of Potawatomi Tribe of Okla., 498 U.S. 505, 510 [1991]). Immunity may be limited only by Congress or express waiver of a tribe (Kiowa, 523 US at 754).
Unsurprisingly, "tribes across the country, as well as entities and individuals doing business with them, have for many years relied on [Supreme Court precedent], negotiating their contracts and structuring their transactions against a backdrop of tribal immunity" (Bay Mills Indian Community, 572 US at ___, 134 S Ct at 2036, referencing Kiowa, 523 U.S. 751). Over the years tribal activities have grown, "tribal gaming revenues [have] increased more than thirty fold," and "other tribal enterprises, ranging from cigarette sales to ski resorts" have flourished (Bay Mills Indian Community, 572 US at ___, 134 S Ct at 2037; see 572 US at ___, 134 S Ct at 2050-2051 [Thomas, J., dissenting]). "[T]ribal business operations are critical to the goals of tribal self-sufficiency because such enterprises in some cases `may be the only means by which a tribe can raise revenues.' This is due in large part to the insuperable (and often state-imposed) barriers Tribes face in raising revenue through more traditional means" (572 US at ___, 134 S Ct at 2043 [Sotomayor, J., concurring] [citation omitted]).
As federal courts have held, the Seneca Nation of Indians has immunity from suit based on its status as a sovereign Indian Nation (Seneca Nation of Indians, 178 F.3d 95) and that Seneca Niagara Falls Gaming and Seneca Gaming are arms of the Nation (Warren v United States, 859 F.Supp.2d 522, 540-541 [WD NY 2012], affd 517 Fed Appx 54 [2d Cir 2013]; Myers v Seneca Niagara Casino, 488 F.Supp.2d 166 [ND NY 2006]) fully clothed with the Nation's sovereign immunity. The question of whether Lewiston Golf, another subentity of the Nation, may assert sovereign immunity then seems a rather straightforward one, and one which should be decided in Lewiston Golf's favor.
Tribal sovereignty, including immunity from suit, "is subject to the superior and plenary control of Congress [and] without congressional authorization, the Indian Nations are exempt from suit" (Santa Clara Pueblo, 436 US at 58 [internal quotation marks and citation omitted]). As such, tribal immunity is "a matter of federal law and is not subject to diminution by the States" (Kiowa, 523 US at 756). The Nation is a sovereign with its own government and rights to self-determination, and as such empowered to determine how best to structure its business ventures. Therefore, we are without authority, absent congressional limitation, to reject the Nation's adoption of a corporate structure that furthers its economic development goals.
The majority relies on this Court's decision in Ransom for the legal framework by which to decide Lewiston Golf's sovereign immunity. However, Ransom was decided before the United States Supreme Court announced its decisions in Kiowa and Bay Mills Indian Community recognizing sovereign immunity applied broadly to Indian business ventures, even those outside Indian lands. Therefore, the factors in Ransom cannot supercede federal proscriptions, and we must be cautious not to rely on these factors in a way that conflicts with federal law.
The record makes abundantly clear that the Nation created Lewiston Golf as a commercial business venture to increase the Nation's gaming revenues for the benefit of the Tribe and its members. The Nation determined that the best way to pursue this goal is through a corporate structure whereby Lewiston Golf is controlled by the Nation's corporate entity. As a sovereign, the Nation is certainly able to decide that this corporate arrangement will enhance its economic independence and sustain its tribal membership and self-sustaining tribal
The logic of treating uniformly the corporate entities for sovereign immunity purposes is illustrated by comparing Lewiston Golf and Seneca Niagara Falls Gaming. As their respective corporate charters reveal, Seneca Niagara Falls Gaming and Lewiston Golf are strikingly similar, both are owned by an arm of the Nation (Seneca Gaming in the case of Seneca Niagara Falls Gaming, and Seneca Niagara Falls Gaming in the case of Lewiston Golf), and both are controlled and run by the Nation. Both seek to increase the Nation's revenue, with the obvious difference that Seneca Niagara Falls Gaming was created for the "purpose of developing, constructing, owning, leasing, operating, managing, maintaining, promoting and financing a Nation Gaming Facility on Nation territory within the exterior boundaries of Niagara County pursuant to the terms of the [gaming] Compact," and Lewiston Golfs purpose is to "develop[], construct[], own[], leas[e], operat[e], manag[e], maintain[], promot[e] and financ[e] the Lewiston Golf Course on land" which at the time of Lewiston Golf's creation was owned by Seneca Niagara Falls Gaming. Thus, one exists to maintain a casino for the Nation's benefit, the other exists to maintain a golf course to enhance casino revenues for the Nation's benefit. Both improve the Nation's economic position. Moreover, not only are they similar in purpose and service to the Nation and its members, but Lewiston Golf is intended as an amenity to the casino to "further[] ... the economic success of the Nation's gaming operations." The point of both business enterprises is to bring revenues to the Nation.
The majority claims that there is no legal support for presuming Seneca Gaming and Seneca Niagara Falls Gaming's sovereign immunity. However, in Warren the district court, as affirmed by the Second Circuit, held that Seneca Gaming "is a government instrumentality entitled to immunity" (859 F Supp 2d at 541), finding specifically that Seneca Gaming
In Myers, the district court stated that Seneca Niagara Falls Gaming "enjoys all of the privileges and immunities of the Nation" (Myers v Seneca Niagara Casino, 488 F Supp 2d at 167-168 n 2). Thus, it is undisputed that under federal law these entities are entitled to the Nation's sovereign immunity.
Nevertheless, the majority casts these decisions to the wind, and asserts that in the instant appeal it may ignore federal precedent and place in question sovereign immunity as it applies to the Seneca Gaming and Seneca Niagara Falls Gaming, and a fortiori Lewiston Golf (majority op at 551). According to the majority, it is free to apply outdated decisions, propound unfounded conclusions, and clear its own path on the question of sovereign immunity until such time as the United States Supreme Court speaks on the issue. Well the Supreme Court has spoken, and we are bound to comply with its pronouncement that tribal sovereign immunity is a federal matter "not subject to diminution by the States" (Kiowa, 523 US at 756). Thus, our Court is without authority to render tribal commercial activities
Implicit in the majority's argument for rejecting Lewiston Golf's claim is the notion that the corporate form, and the protections therein, categorically bars the extension of sovereign immunity. This is simply an irrelevant consideration because the sovereign immunity of a tribe extends to its subordinate economic entities (see e.g. Native Am. Distrib. v Seneca-Cayuga Tobacco Co., 546 F.3d 1288 [10th Cir 2008] [tobacco manufacturer]), including corporate entities (see e.g. Memphis Biofuels, LLC v Chickasaw Nation Indus., Inc., 585 F.3d 917, 921 [6th Cir 2009] [tribal conglomerate was an arm of the Tribe; incorporating under 25 USC § 477, i.e., a section 17 corporation, did not automatically waive tribal sovereign immunity]; Koscielak v Stockbridge-Munsee Community, 340 Wis.2d 409, 418, 811 N.W.2d 451, 456 [2012] [golf course and supper club], review granted 342 Wis.2d 155, 816 N.W.2d 321 [2012]).
The majority rests its decision on Lewiston Golf's apparent inability to bind or obligate the funds of the Seneca Nation. As noted above, the financial and administrative duties and obligations of Lewiston Golf the Seneca Nation are nearly identical to those of Seneca Niagara Falls Gaming. According to their charters, neither can bind nor obligate the funds of the Seneca Nation. Yet, Seneca Niagara Falls Gaming is an arm of the Tribe (see Sue/Perior Concrete & Paving, Inc. v Seneca Gaming Corp., 99 A.D.3d 1203 [4th Dept 2012]; Seneca Niagara Falls Gaming Corp. v Klewin Bldg. Co., Inc., 2005 WL 3510348, *5, 2005 Conn Super LEXIS 3295, *14 [Nov. 30, 2005, No. KNL-CV-05-4004218-S] [Seneca Niagara Falls Gaming, which is a wholly-owned subsidiary of Seneca Gaming is a governmental instrumentality of the Seneca Nation]; Warren, 859 F Supp 2d at 540-541 [Seneca Gaming entitled to immunity; finding Seneca
In deciding the expanse of sovereign immunity, our focus should be on the purpose and goals of the corporate entity. We should look to whether the corporate entity furthers tribal self-determination and self-governance, and as such, benefits the tribe's members. Therefore, I would not rely primarily on Ransom's financial interconnectedness factors. Indeed, federal and state courts have criticized the multi-factor approach to subordinate economic analysis as contravening Kiowa (see Kiowa, 523 US at 754-755; Breakthrough Mgt. Group, Inc., 629 F3d at 1185-1189 [expressly overruling district court's holding that financial interconnectedness is a threshold factor]; Cash Advance & Preferred Cash Loans v State, 242 P.3d 1099, 1110 n 12 [Colo 2010] [distinguishing Ransom as pre-Kiowa]). Moreover, Runyon, also a pre-Kiowa case, was an expressly narrow ruling, which relied on Ransom and Alaska corporate law (Runyon v Association of Vil. Council Presidents, 84 P.3d 437, 441 [Alaska Sup Ct 2004], citing Alaska Stat § 10.20.051 [b]).
Plaintiff argues that even if Lewiston Golf is entitled to sovereign immunity, that immunity has been waived and thus it is subject to suit. I can find no basis in law or the record to support waiver. As the United States Supreme Court has made clear, "an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity" (Kiowa, 523 US at 754). Just this past term, in Michigan v Bay Mills Indian Community, the Supreme Court reaffirmed, not only that it is for Congress "to abrogate tribal immunity for off-reservation commercial conduct," but that Congress has chosen not to do so (572 US at ___, 134 S Ct at 2031).
As the court in Ransom recognized, "preserving tribal resources and tribal autonomy are matters of vital importance" and waiver of "sovereign immunity cannot be implied but must be unequivocally expressed" (Ransom, 86 NY2d at 560-561 [internal quotation marks omitted], quoting Santa Clara Pueblo, 436 US at 58). "[W]aivers ... are ... strictly construed in favor of the Tribe" (Ransom, 86 NY2d at 561 [internal quotation marks omitted], quoting Rupp v Omaha Indian Tribe, 45 F.3d 1241, 1245 [8th Cir 1995]).
I would reverse the Appellate Division because Lewiston Golf is entitled to sovereign immunity, therefore I dissent.
Order affirmed, with costs, and certified question answered in the affirmative.