86 N.Y.2d 553 (1995)
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A tribe’s reference in a corporate charter to statutory authority to sue and be sued, standing alone, does not constitute an express and unequivocal waiver of sovereign immunity nor subject the tribal entity to the jurisdiction of state courts.
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Summary
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The St. Regis Mohawk Education and Community Fund (Fund), a tribal social service agency incorporated under the District of Columbia Nonprofit Corporation Act and qualified to do business in New York, faced a lawsuit from employees challenging their dismissal. The Fund claimed tribal sovereign immunity. The New York Court of Appeals held that the Fund, as an arm of the tribe, generally enjoyed sovereign immunity. Furthermore, the Court held that the Fund’s reference to the power to “sue and be sued” in its corporate charter, derived from the District of Columbia Nonprofit Corporation Act and New York’s Not-For-Profit Corporation Law, did not constitute an explicit waiver of its sovereign immunity, as required for a valid waiver.
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Facts
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James W. Ransom, Wesley Laughing, Brian D. Cole, and Sakakohe Pembleton, members of the St. Regis Mohawk Tribe, were employed by the St. Regis Mohawk Education and Community Fund (Fund). The Fund is a nonprofit corporation organized in 1982 under the District of Columbia Nonprofit Corporation Act to provide services to residents of the St. Regis Mohawk Reservation. L. David Jacobs, Norman Tarbell, and Lincoln C. White, directors of the Fund, were also the elected Tribal Chiefs. In 1990, the Fund applied for authorization to do business in New York. The Fund’s articles of incorporation state that it may exercise all powers granted under the District of Columbia Nonprofit Corporation Act, including the power to accept donations and own or lease property. In 1990, the employees were suspended or discharged and the Fund conceded that the Tribe’s grievance procedures were not followed.
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Procedural History
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The employees initiated a CPLR article 78 proceeding challenging their dismissal, alleging due process violations. The Supreme Court initially rejected the sovereign immunity defense and ordered reinstatement with back pay. The Appellate Division reversed and remitted for a factual determination regarding the employees’ employer and the Fund’s immunity. On remand, the Supreme Court found the Fund had waived its sovereign immunity through incorporation and qualification to do business in New York, reaffirming its original determination. The Appellate Division again reversed, holding that the Fund was an arm of the tribal government entitled to sovereign immunity and that a waiver of this immunity must be unequivocally expressed. The Court of Appeals affirmed the Appellate Division’s decision.
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Issue(s)
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1. Whether the St. Regis Mohawk Education and Community Fund, as an entity providing services on behalf of and under the direct fiscal and administrative control of the St. Regis Mohawk Tribe, is entitled to the protection of tribal sovereign immunity.
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2. Whether the Fund waived its sovereign immunity by including a provision in its articles of incorporation stating that it may exercise all powers granted under the District of Columbia Nonprofit Corporation Act, including the power to “sue and be sued”, and by qualifying to do business in New York as a foreign corporation.
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3. Whether the individual respondents, as tribal officials, are stripped of their immunity if they acted outside the scope of their authority by failing to afford petitioners the disciplinary process outlined in the Tribe’s Personnel Policy and Procedure Manual.
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Holding
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1. Yes, because the Fund was established to enhance the health, education and welfare of Tribe members, a function traditionally shouldered by tribal government, receives its resources from the Tribe, and its governing body may only be comprised of elected Chiefs of the Tribe.
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2. No, because the tribe has not explicitly consented in the Fund’s charter, or by any ordinance or resolution, to waive its sovereign immunity, submit corporate disputes to the jurisdiction of the New York courts or be bound by such judgment; the mere fact that a tribal corporation has designated an agent for service of process or is empowered to “sue and be sued” does not automatically subject that corporate entity to any court’s jurisdiction where jurisdiction is otherwise lacking.
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3. No, because their acts, at most, involve the erroneous exercise of their delegated duties, their acts are not ultra vires, and, as tribal officials acting in their representative capacity and within the scope of their authority, they remain protected by the sovereign immunity enjoyed by the Fund.
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Court’s Reasoning
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The Court reasoned that Indian tribes possess common-law sovereign immunity from suit. Tribal entities created to further governmental objectives may also possess this immunity absent a waiver. The Court considered factors such as the entity’s organization under tribal laws, its purpose serving the tribal government, and the tribe’s control over the entity’s administration and finances. Here, the Fund, established to benefit Tribe members and controlled by Tribal Chiefs, was deemed an arm of the tribe entitled to sovereign immunity.
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The Court emphasized that a waiver of tribal sovereign immunity