SORTING OUT A 350 YEAR OLD REAL ESTATE SALE

By Jerry Cimisi

The Shinnecock Nation returned to federal court in Islip last week, attempting to win its case for claiming the 79 acres in Hampton Bays known as Westwoods. If the tribe is successful, this means that Southampton Town would have no jurisdiction whatsoever on the property and so its current order to halt any type of clearing or construction would be vacated. A plan for a gambling hall could proceed.

Amidst all the testimony that has occurred or will occur, it appears the issue boils down to a simple matter of establishing whether or not the East End of Long Island was under the jurisdiction of New York State or Connecticut during a period in the 1600s when two individuals bought land from the Indians.

Two old Hampton names, whose families were here centuries ago, figure in this story.

In 1659, John Ogden purchased land from Chief Wyandanch, the renowned Indian sachem. (It was Wyandanch who sold David Lion Gardiner his island.) The property in question went from Canoe Place (that is, the Canal) to Beaver Dam Creek, in the western part of Westhampton Beach

In 1662, another man, Thomas Topping, bought land from three Indians. The deed names one as “Weany,” a female, and another by the name “Jackanape.” A “jackanape” was a derogatory description of the time, indicating someone who looks like a monkey.

Topping’s purchase was of land that went from Canoe Place to what was known at the time as Seatuck (later, Setauket) on the Brookhaven Town line. Brookhaven was called Seatuck then.

As seen, these two purchases were from different Indians. But if Topping’s land was the larger parcel, there was the problem that Ogden’s land, purchased three years earlier, was in Topping’s purchase. In other words, if strict records and enforcement of these matters had been kept then (which they weren’t), Topping could not have made his purchase because he was “buying,” within his parcel the land that Ogden had already bought.

But in fact, this is all moot, because under the existing laws of Connecticut, under whose jurisdiction Southampton Town was at the time, no private individual was legally allowed to buy land from the Indians. Only officials of the state could make such purchases. This was perhaps a case of big government not wanting individuals to increase their capital and property, but it was also a law that would avoid conflicts such as the purchases of Ogden and Topping.

Connecticut was then ruled by a General Court, a legislative body. Towns within the state, and also towns on the East End of Long Island, would send representatives to the court. It appears that Topping and Ogden themselves were among such representatives. So they should have been aware of the law regarding sales by Indians to private individuals.

The European settlers of the North and South Forks of Long Island came from Connecticut, a logical journey southward across what would eventually be known as Long Island Sound. The East End of the island provided great soil for crops and if you came from as far north as Boston, an appreciably longer growing season.

As the towns of Southold and Southampton were established around 1640, they were at that time, technically under no jurisdiction but their own. Although in 1643, they agreed to become part of Connecticut — and remained so until 1664.

It was then that King Charles II of England gave James, Duke of York, a patent for the New World lands along the East Coast, south of Connecticut. Richard Nicolls, an agent sent by York, sailed into New York Harbor (actually the harbor of Holland-controlled New Amsterdam) in September, 1664, anchored off Wall Street and demanded the Dutch surrender the city. They did.

Nicolls named the area south of Wall Street Fort James after his employer the Duke, and of course, New Amsterdam became New York.

Nicolls sent letters to Southampton Town, basically asserting, henceforth, I’m in charge. Southampton didn’t like it. They wanted to continue trading with Connecticut across the Sound. Connecticut was close and cheaper to trade with (trade with Connecticut was tax-free) than distant New York City and its Fort James.

But James, via the king’s patent, owned all the land of Long Island — after all, it was south of Connecticut. The citizens of Southampton were merely, in the law’s eyes, squatters. They fell in line. They belonged to New York.

But if Southampton Town and hence its citizens Ogden and Topping, were under Connecticut rule prior to this, their purchases of land from the Indians, in 1659 and 1662 respectively, were null and void and the property now known as Westwoods, has always been owned by the Shinnecock Nation. The Shinnecocks appear to have overwhelming proof of what the law calls “aboriginal” ownership of the area, now known as Westwoods since time immemorial. Just as in the case of the Shinnecock Reservation itself, the Shinnecocks can show they have always been there. It is of note that the Shinnecocks may occupy the only Indian reservation in America that a tribe has not been moved to; in other words, this was land on which they have always existed.

(The Shinnecocks are no longer claiming all the land once deeded to Topping and Ogden—a recent claim they had made to land east of the Canal has been dismissed.)

There is ample historical record for the history of the Indian sales to Topping and Ogden. And a good deal of it has survived by luck. In 1911, an Albany fire destroyed many New York State records from 1720 on; but records from the 1600s were in the basement of the building and were spared. In fact, some of these records had earlier been sent to London, where copies were made. And in the 19th century, Connecticut published volumes of its own historical documents.

Sundy Schermeyer, of the Southampton Town’s Clerk’s Office, verified that the town was not under the jurisdiction of New York until 1664. So it seems possible the tribe has an open and shut case about the illegality of the Ogden and Topping sales and, hence, claim to Westwoods.

A further note about the Shinnecocks decades-long effort to seek federal recognition as a tribe; begun in 1978, the tribe’s case is now ninth on a list to be studied by the Bureau of Indian Affairs, which says it will not get to the Shinnecocks until about 2009. Then it takes some five years for the Bureau to study the application of a tribe and make its decision. Which would make someone born in 1978 old enough to run for president by the time the bureau gives its ultimate word.