37 A.D.3d 841
Supreme Court, Appellate Division, Second Department, New York.

In the Matter of Thomas J. SPOTA, o/b/o Unkechaug Indian Nation, appellant,
v.
Tina JACKSON, respondent.

Feb. 27, 2007.

Synopsis

Background: District Attorney, acting on behalf of Indian tribe, applied for order under section 8 of the Indian Law to remove a white woman from lands of the Unkechaug Indian Nation as an intruder. The County Court, Suffolk County, Hinrichs, J., denied the petition, and appeal was taken.

The Supreme Court, Appellate Division, held that wife of member of Indian tribe, who moved with her children to an allotment on tribal lands belonging to her husband, was not an “intruder” on the tribe’s lands for purposes of the Indian Law.

Affirmed.

Procedural Posture(s): On Appeal.

Opinion

In a proceeding pursuant to Indian Law § 8, the petitioner appeals from an order of the County Court, Suffolk County (Hinrichs, J.), dated November 4, 2005, which, after a trial, determined that the respondent was not an intruder upon a certain portion of the lands of the Unkechaug Indian Nation and denied the petition.

ORDERED that the order is affirmed, with costs.

In 2002 the respondent, Tina Jackson, moved with her children to an allotment on the lands of the Unkechaug Indian Nation (hereinafter the tribe) belonging to her husband, George Jackson (hereinafter Jackson), a “blood-right” member of the tribe as defined by the Tribal Rules, Customs, and Regulations of the tribe. In February of 2004 Jackson transferred his interest in the allotment to his brother. The tribe’s Chief testified that after the transfer, the tribe’s Tribal Council, with the acquiescence of Jackson’s brother, permitted the respondent to remain on the allotment while caring for her children, who are blood-right members of the tribe. However, in 2005 Jackson’s brother asked the Tribal Council to have the respondent removed and, at the request of the Tribal Council, the petitioner commenced the instant proceeding.

Initially, we note that the County Court correctly determined that the question of the legitimacy of the transfer of the allotment from Jackson to his brother is an internal matter to be determined by the tribe and not by the courts (see Valvo v. Seneca Nation of Indians, 170 Misc.2d 512, 517, 650 N.Y.S.2d 937). Nevertheless, contrary to the petitioner’s contention, the County Court had the authority to determine in this proceeding whether the respondent was an “intruder” on the tribe’s lands as defined by the Indian Law (Indian Law § 8; see Matter of Catterson v. Pell, 249 A.D.2d 387, 670 N.Y.S.2d 794). The County Court properly determined that the respondent was not an intruder, as she did not force her way onto the allotment without leave or welcome (see Matter of Stakel v. Blueye, 281 App.Div. 183, 184, 119 N.Y.S.2d 133, affd. 306 N.Y. 679, 117 N.E.2d 355), and she is responsible for her children until they reach the age of 21 (see Domestic Relations Law § 240[1–b][b][2]; Family Ct. Act § 415). As the respondent was not an intruder, the County Court properly denied the petition to have her removed.

All Citations
37 A.D.3d 841, 832 N.Y.S.2d 574, 2007 N.Y. Slip Op. 01745