Dan's Papers - October 13, 2006

Tuesday marked the start of the civil federal trial between the Shinnecock Indian Nation and the Town of Southampton and State of New York concerning the status of the 79-acre Hampton Bays property known as Westwood. At issue is whether the parcel should be considered part of the Shinnecock tribe's reservation as opposed to regular land that the tribe happens to have purchased. Should the federal Bureau of Indian Affairs (BIA) approve the tribe's request for federal recognition, the status of Westwood becomes important, as Native American tribes may operate a gaming business only on tribal reservation property.

The trial, in the Eastern District of New York Islip courthouse, is the second stage of a lawsuit that has received much attention. In late 2005, Judge Thomas C. Platt issued a pre-trial ruling recognizing the Shinnecock tribe for federal purposes. The tribe, which calls itself the "oldest self-governing tribe of Indians in the United States," has long been recognized as an authentic tribe by New York State. However, the tribe's application for federal recognition, filed during the 1970s, was deemed complete only in 2003, and more than one-dozen completed applications were already pending at the time.

While Judge Platt's ruling seemed consequential at first blush, the BIA was not a party to the lawsuit, as Judge Platt had dismissed the agency from the case after bringing the agency in. A ruling cannot bind a non-party, and the BIA informed the Shinnecocks early this year that the tribe must proceed through the application process. The agency does not expect to begin consideration of the application until 2009, and the process could then take five years or even more. Recognition will be granted if the BIA finds that the Shinnecocks have maintained a continuous tribal government as part of a single, historically intact community. Given that New York State already recognizes the tribe as such, it may stand to reason that the BIA will eventually reach the same conclusion. Today, there are 561 tribes recognized by the BIA. Their reservation land occupies 55.7 million acres.

If the Shinnecock tribe is granted BIA recognition, they would have the right to operate limited gaming facilities on their Shinnecock Hills reservation property, such as bingo. They would also have federal permission to operate table games and slot machines on the reservation land, but only if New York State were to agree. The current administration opposes such a casino, as do local politicians, but any future government could have a different view, particularly if the Shinnecock Indian Nation has the imprimatur of federal recognition.

In the trial beginning this week, Westwood is the focus. 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 is needed. The Shinnecocks argue that their long ownership of, and relationship to, the land entitles it to be given the same status as their Shinnecock Hills reservation. But the Town of Southampton and State of New York argue that it was never part of the original reservation, and because of certain sales and repurchases over time, the land would have lost any reservation recognition anyway.

The dispute began when the Shinnecocks began clearing land on Westwood. Although they later claimed they did so because they needed dirt for a ceremony on the Shinnecock 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.

If the land is not found to be reservation property, then the Shinnecocks will be required to comply with the same Town zoning rules that apply to other property owners. On the other hand, if the Shinnecocks prevail in court, a peculiar and complicated issue will arise. In one sense, this lawsuit placed the cart before the horse, in that the BIA does not recognize the Shinnecocks as an historic tribe yet. On the other hand, from the Town and State's point of view, Judge Platt has ruled that the Shinnecocks are a federal tribe. What this ultimately means, with respect to what the tribe may do with the land, may be a matter best solved by philosophers, or at least a team of highly-paid lawyers.

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 has historically been dealt with by the State and Town as a tribe.

Although most South Fork residents are opposed to construction of a casino in Shinnecock Hills or Hampton Bays, people also feel that the Shinnecock Indian Nation deserves respect as a tribe and that finding a way to ensure the tribe's economic self-reliance is important. Although that is a topic in and of itself, one solution may be found in Calverton or other locations west of the North and South Forks. There has been some talk over the years that a casino would be welcome in such places, should the Shinnecock tribe be recognized by the BIA. Indeed, according to the Shinnecock elders, they would prefer to build a casino on such a site, as it is more accessible, rather than on Westwood.