Appeal from a summary judgment in favor of appellees entered in the United States District Court for the Western District of New York (Curtin, Ch. J.) dismissing appellant's challenge to enforcement of city ordinances on property located within the Allegany reservation of the Seneca Indian Nation.
Pierce, Winter, and Miner, Circuit Judges.
Plaintiff-appellant Maurice John appeals from a summary judgment entered in the United States District Court for the Western District of New York (Curtin, Ch. J.) in favor of defendants-appellees Norris Stone and the City of Salamanca. John, an enrolled member of the Seneca Nation of Indians, claims that, because his commercial property is located on Seneca Nation land, the City of Salamanca and its zoning code enforcement officer, Norris Stone, are without authority to compel John's compliance with the city's building code. We agree with the district court that federal law subjects John's property to regulation and affirm the grant of summary judgment.
Maurice John is an enrolled member of the Seneca Nation of Indians. He owns a restaurant bearing his name in Salamanca, New York. According to the appellees, eighty-five percent of the City of Salamanca, including the site of John's establishment, lies within the Allegany reservation. This reservation land was set aside for the Seneca Nation by the United States government in the Treaty with the Six Nations, Nov. 11, 1794, 7 Stat. 44 (the "1794 Treaty"). Through various agreements negotiated in the latter half of the nineteenth century, the Seneca Indians leased reservation land to settlers and rail companies. See United States v. Forness, 125 F.2d 928, 930-31 (2d Cir.), cert. denied sub nom. City of Salamanca v. United States, 316 U.S. 694, 86 L. Ed. 1764, 62 S. Ct. 1293 (1942). These leases subsequently were ratified by Congress, and villages that had been established unofficially on the leased land were recognized. See Act of Feb. 19, 1875, ch. 90, 18 Stat. 330 (the "1875 Act"). The villages of Salamanca and West Salamanca, which merged to become the City of Salamanca in 1913, were among the villages recognized in the 1875 Act.
In 1986, John began renovating his restaurant premises without first applying for a building permit and filing his plans with Salamanca's zoning commissioner, appellee Stone, in violation of Salamanca Municipal Ordinance § 26.31. As a consequence, appellant was served with notices of violation and stop orders, the last of which was served on June 27, 1986.*fn1 Following the commencement of this action, John applied for a temporary restraining order and preliminary injunction, alleging that the defendants were without authority to enforce the building code against him and that their attempts to enforce it constituted harassment. In his complaint, he requested damages and permanent injunctive relief.
Appellees opposed John's motion and moved for summary judgment, supported by the affidavits of Stone, numerous city officials and others attesting to the past compliance with the city's building code by members of the Seneca Nation. Additionally, appellees contended that the city's enforcement of its building code was authorized by federal law. In particular, they claimed that Congress expressly granted the State of New York jurisdiction over the Seneca Nation in the 1875 Act and in 25 U.S.C. § 233,*fn2 which extended the civil jurisdiction of the state courts over the Seneca Indians.
In opposition to the motion for summary judgment, John submitted his own affidavit, arguing that the Seneca Nation owned the Allegany reservation and that the city's attempt to enforce its ordinances was an unauthorized infringement of the Seneca Nation's sovereignty. John presented no evidence to rebut the city's factual submissions concerning past compliance with the building code, although he did claim that the affidavits offered were "self-serving."
Chief Judge Curtin granted the motion for summary judgment. He held that section 233 was an explicit grant to New York State of civil jurisdiction over the Seneca Indians. Since the Salamanca building code was enacted pursuant to authority delegated by the state, see N.Y. Exec. Law § 374-a (McKinney 1982), the Judge concluded that the code had the effect of state law. Thus, as a matter of law, John was subject to the code pursuant to section 233.
On appeal, John attacks the district court's decision on several grounds. He argues that the city's ordinances are preempted by the 1794 Treaty, which guarantees the Seneca Indians "free use and enjoyment" of the reservation lands, see 1794 Treaty, at art. III, 7 Stat. 45. He also bottoms his challenge on the principle that, absent congressional action conferring regulatory power, state and local governments are without authority to enforce zoning and building codes on Indian reservations. See Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir. 1975), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 731 (1977). John claims that section 233 is not, as the district court found, such a grant of authority.
John asserts that federal law places the power to oversee the Allegany reservation in the Secretary of the Interior and that the Secretary's regulation, 25 C.F.R. § 1.4 (1987), explicitly prohibits enforcement of state and local zoning and use restrictions on the reservation. He argues that enforcement of the city's code is an affront to the sovereignty of the Seneca Nation. Finally, he disputes the contention, urged by appellees, that the 1875 Act extends municipal law to the leased land.
We conclude that the 1875 Act, as interpreted by this Court in Forness, ...