Dans Papers - May 25, 2007 - Gambling Site Case Goes To The Judge

The Shinnecock Indian Nation's efforts to become a federally-recognized Indian tribe and to build a casino reached a new milestone last Wednesday (May 9) when lawyers for the Tribe and the New York governmental entities presented closing arguments following a trial that lasted more than half a year. Federal Judge Joseph F. Bianco will now consider the evidence and arguments, then render a verdict in this bench trial.

The history of the dispute is a bit convoluted and the trial that is soon to be concluded will not resolve all issues, only the status of the Tribe's Westwood property, which comprises 79 acres in Hampton Bays. The question is whether Westwood qualifies as "aboriginal" reservation tribal land (over which recognized Indian tribes have sovereign authority) or land originally belonging to the Colonies, State or private owners and only later acquired by the Tribe. The issue of whether the Tribe should be federally recognized is the subject of a separate lawsuit.

This all started back in 2003, when the Shinnecocks began clearing land on their Westwood property. Although they later claimed they did so because they needed dirt for a ceremony on the Shinnecock Hills reservation, the action was viewed as a provocation concerning the long-running dispute over whether they should be entitled to build a casino on the East End. The Town and State brought a lawsuit seeking an immediate injunction against further clearing. A state court judge, Edward D. Burke, Sr., granted the injunction, and once the case was moved to federal court, Judge Platt extended the injunction, which still remains in effect, pending the trial.

The Tribe may build a casino on Westwood if they meet two hurdles. First, the Tribe must be recognized by the Federal government as an authentic Native American Tribe. The Shinnecocks (who call themselves "the oldest self-governing Tribe of Indians in the United States") has long been recognized as an authentic tribe by New York State, but only Federal recognition counts for casinos. The tribe's application for federal recognition, filed with the Bureau of Indian Affairs during the 1970s as one of the first such applications, was deemed complete in 2003 and more than one dozen completed applications were already pending at the time. The agency does not expect to begin consideration of the Shinnecocks' application until 2009 and the process could then take five years or longer to complete.

Back in 2005, two years into the Westwood litigation, Federal Judge Thomas C. Platt issued a ruling that established the authenticity of the Shinnecock Tribe for Federal purposes, in effect bypassing the BIA process. However, the parties to the lawsuit included only local and State authorities, not the BIA. It is a well-known legal doctrine that someone who is not a party to a lawsuit cannot be bound by the result. For that reason, the BIA still does not recognize the Shinnecocks as an authentic Federal tribe.

The second hurdle that the Tribe must meet in order to build a casino relates to the property itself. A Tribe's reservation is, in essence, a foreign country within the United States, much like a foreign embassy. State and local zoning rules have no application to Tribal reservation land -- only Federal laws and treaties with tribes can dictate how Indian tribes may use their reservation land. Thus, once a Tribe is recognized by the BIA, Federal law states that it may operate limited gaming facilities such as bingo and operate table games and slot machines, but only if the State agrees.

The nature of the property was the issue in the Westwood trial. The history of the parcel, which is located just to the west of the Shinnecock Canal and is bisected by the Sunrise Highway, is unclear, which is why the fact-determination process of a trial was needed. The Shinnecocks argued that their long ownership of and relationship with the land -- and its alleged theft by white settlers years ago -- entitles the land to be given the same status as the Tribe's Shinnecock Hills reservation. Among other things, they pointed to old tax maps designating the land as Native American reservation. But the Town of Southampton and State of New York argue that the land was never part of the original reservation. Because of certain sales and repurchases over time, the land would have lost any reservation recognition years ago.

Judge Bianco, who replaced Judge Platt before the trial, will rule on the status of Westwood in the coming weeks or months. (It is not uncommon for a judge to give up a case mid-stream. As new judges are appointed to the courts, other judges routinely give up some of their cases to lighten their loads and give the new judges immediate work). If Judge Bianco rules that Westwood is not tribal reservation, then the Tribe must comply with all local zoning laws and there will be no casino. If, on the other hand, he rules that the Westwood property is no different than the Shinnecock Hills reservation, a new and serious dispute will arise.

From the perspective of the State of New York and the relevant local governments, the Shinnecock Indian Nation is a federally recognized tribe. Judge Platt said so. And while the ruling cannot bind the BIA, it does bind the government parties to this case. On the other hand, the BIA explicitly refuses to recognize Judge Platt's ruling, in that the BIA was not a party to this case. So, if Westwood is tribal reservation land, can the Tribe rely on Judge Platt's ruling and tell the State, County and Town not to interfere? Or does the tribe need to wait for BIA recognition? Judge Bianco will have to decide on that issue, although prudence would dictate that he rule that the Shinnecocks cannot do anything to Westwood until all relevant disputes are resolved.

Meanwhile, the Shinnecock Tribe has brought a lawsuit against the BIA, seeking an order that the BIA must follow Judge Platt's ruling, even though the BIA was not originally a party. The BIA has brought a motion to dismiss the new lawsuit without a trial, because it was not a party and cannot be bound. The Tribe argues that the relevant legal provisions allow a judge to grant federal recognition, such that Judge Platt's ruling carries the weight of law, even as to the BIA.

When Judge Platt ruled that the Shinnecock Indian Nation is entitled to federal status as a tribe, he based that decision on a number of historical facts, including that the Shinnecocks have been recognized by the State of New York for more than 200 years, were in possession of property in Southampton when the first European settlers arrived in the 1600s and have historically been dealt with by the State and Town as a tribe. The Shinnecocks' history in New York and interactions as a Tribe with the Colonies are said to be particularly well documented. A tribe that has maintained a continuous tribal government as part of a single, historically intact community is entitled to Federal recognition.

Tribal leaders have suggested that they would prefer to construct a casino in Calverton or at some other site that would not create the kind of traffic problems everyone envisions for an East End casino. Because such parcels are not part of the Shinnecock reservation, the Tribe would need State and local approval to build there. The lawsuit over Westwood may be nothing more than an effort to provide the Tribe with a powerful bargaining chip. The Tribe's substantial legal fees are being paid for by casino developers.