Post by blackcrowheart on Nov 18, 2005 22:53:06 GMT -5
District court rules for Shinnecock
Posted: November 11, 2005
by: Jim Adams / Indian Country Today
SOUTHAMPTON, N.Y. - With a loud slap at the BIA, a federal judge has ruled that the state-recognized Shinnethingy Indian Nation is a legitimate tribe in the eyes of federal courts.
The decision by U.S. District Court Judge Thomas Platt bypassed the BIA's recognition process administered by the Office of Federal Acknowledgment and bluntly rejected opposition from the state of New York, several state agencies and the town of Southampton.
It also provided a ray of hope for two Connecticut tribes whose previous recognitions were recently reversed by the Interior Department. Connecticut and New York both fall under the federal 2nd Circuit Court of Appeals, so the Shinnethingy decision and any appellate action would have direct bearing on any suits brought by the Eastern Pequot Tribal Nation and the Schaghticoke Tribal Nation.
Platt's decision reflected widespread judicial impatience with the long delays at the BIA. He noted that the 2nd Circuit had remanded the recognition question to his court ''because of the BIA's inability to reach these decisions for some twenty years.''
The Shinnethingy first applied for federal acknowledgement in 1978. OFA finally placed them on its ''Ready, Waiting for Active Consideration'' list on Sept. 9, 2003.
Platt sarcastically rejected state and local government attempts to deny the status of the Shinnethingys. ''The arguments advanced by the State Attorney General and the Town Attorney, were and are, at best, blatantly inconsistent (to say the least),'' he wrote.
He junked as irrelevant town challenges to Shinnethingy genealogy.
The case, like most recognition challenges these days, took place in the shadow of a casino. The ruling dealt with preliminary motions in a state and local suit to prevent the Shinnethingys from developing a 79-acre tract of land as a major casino and resort. By rejecting motions for summary dismissal, Platt cleared the way for a full trial on a number of issues, including whether the Shinnethingy could exercise sovereign control over the casino site, called Westwoods.
(Although tribally owned, the Westwoods site does not fall within current reservation boundaries.)
Platt wrote, however, that in his court's opinion, tribal members ''are not obligated under present circumstances to seek or obtain approval by the United States before proceeding to develop their properties.''
The decision also removes a possible barrier to the tribe's land right suits. The tribe has already filed one suit to reclaim land it said was illegally sold to a number of corporate entities around Southampton and has been contemplating an even broader suit against the town itself.
Many questions surround Platt's decision. If it survives appeal, for instance, would judicially recognized tribes have the same access to federal programs as tribes with BIA acknowledgement published in the Federal Register? Would these tribes be denied Class III casinos under the provisions of IGRA but still have the sovereign right to operate Class II bingo-based gaming?
Judicial recognition has been largely uncharted territory, since many tribes have been warned away from that course by the bad experience of the Mashpee Wampanoag in Massachusetts. When that tribe sued for recognition, the judge ordered a jury trial. The Mashpee's non-Indian neighbors predictably ruled against them.
Platt found little doubt that the Shinnethingy qualified as a tribe. He said the issue was decided ''by the enactment of a law by the New York State legislature and signed by the governor in 1792.'' He listed at least seven subsequent legislative acts affecting the Shinnethingy. He also cited the Shinnethingys' uninterrupted possession of land in Southampton since the first European arrivals in 1640.
Platt also wrote that the tribe ''has functioned under a political leadership for more than 200 years, having met as a tribe to elect tribal leaders in every year from 1792 through 2004.'' This history, he said, met the standards of the 1901 Supreme Court case Montoya v. United States.
State and local attorneys countered in effect that state recognition of a tribe didn't matter. Platt gave a round-about reply that might well be the focus of future contention. He said that he had brought federal attorneys into the case on his own initiative. They remained involved long enough to understand the issues but then chose ''to opt out.''
''From this,'' he wrote, ''one may conclude that the United States is disclaiming any interest in the question and accepts the status of the Defendants as an Indian Tribe.''
The second part of the decision concerned the status of the Westwoods parcel on the western edge of the reservation and showed the spreading impact of the Supreme Court's March 29 City of Sherrill v. Oneida Indian Nation of New York decision. Platt noted that the Shinnethingys held uninterrupted title to the land and relied on it for their firewood. Whether this constituted ''aboriginal title'' with sovereign status had to be considered in the context of Sherrill, he said, which ''altered the legal landscape.'' But these issues, he said, ''may only be resolved at a trial.''
Posted: November 11, 2005
by: Jim Adams / Indian Country Today
SOUTHAMPTON, N.Y. - With a loud slap at the BIA, a federal judge has ruled that the state-recognized Shinnethingy Indian Nation is a legitimate tribe in the eyes of federal courts.
The decision by U.S. District Court Judge Thomas Platt bypassed the BIA's recognition process administered by the Office of Federal Acknowledgment and bluntly rejected opposition from the state of New York, several state agencies and the town of Southampton.
It also provided a ray of hope for two Connecticut tribes whose previous recognitions were recently reversed by the Interior Department. Connecticut and New York both fall under the federal 2nd Circuit Court of Appeals, so the Shinnethingy decision and any appellate action would have direct bearing on any suits brought by the Eastern Pequot Tribal Nation and the Schaghticoke Tribal Nation.
Platt's decision reflected widespread judicial impatience with the long delays at the BIA. He noted that the 2nd Circuit had remanded the recognition question to his court ''because of the BIA's inability to reach these decisions for some twenty years.''
The Shinnethingy first applied for federal acknowledgement in 1978. OFA finally placed them on its ''Ready, Waiting for Active Consideration'' list on Sept. 9, 2003.
Platt sarcastically rejected state and local government attempts to deny the status of the Shinnethingys. ''The arguments advanced by the State Attorney General and the Town Attorney, were and are, at best, blatantly inconsistent (to say the least),'' he wrote.
He junked as irrelevant town challenges to Shinnethingy genealogy.
The case, like most recognition challenges these days, took place in the shadow of a casino. The ruling dealt with preliminary motions in a state and local suit to prevent the Shinnethingys from developing a 79-acre tract of land as a major casino and resort. By rejecting motions for summary dismissal, Platt cleared the way for a full trial on a number of issues, including whether the Shinnethingy could exercise sovereign control over the casino site, called Westwoods.
(Although tribally owned, the Westwoods site does not fall within current reservation boundaries.)
Platt wrote, however, that in his court's opinion, tribal members ''are not obligated under present circumstances to seek or obtain approval by the United States before proceeding to develop their properties.''
The decision also removes a possible barrier to the tribe's land right suits. The tribe has already filed one suit to reclaim land it said was illegally sold to a number of corporate entities around Southampton and has been contemplating an even broader suit against the town itself.
Many questions surround Platt's decision. If it survives appeal, for instance, would judicially recognized tribes have the same access to federal programs as tribes with BIA acknowledgement published in the Federal Register? Would these tribes be denied Class III casinos under the provisions of IGRA but still have the sovereign right to operate Class II bingo-based gaming?
Judicial recognition has been largely uncharted territory, since many tribes have been warned away from that course by the bad experience of the Mashpee Wampanoag in Massachusetts. When that tribe sued for recognition, the judge ordered a jury trial. The Mashpee's non-Indian neighbors predictably ruled against them.
Platt found little doubt that the Shinnethingy qualified as a tribe. He said the issue was decided ''by the enactment of a law by the New York State legislature and signed by the governor in 1792.'' He listed at least seven subsequent legislative acts affecting the Shinnethingy. He also cited the Shinnethingys' uninterrupted possession of land in Southampton since the first European arrivals in 1640.
Platt also wrote that the tribe ''has functioned under a political leadership for more than 200 years, having met as a tribe to elect tribal leaders in every year from 1792 through 2004.'' This history, he said, met the standards of the 1901 Supreme Court case Montoya v. United States.
State and local attorneys countered in effect that state recognition of a tribe didn't matter. Platt gave a round-about reply that might well be the focus of future contention. He said that he had brought federal attorneys into the case on his own initiative. They remained involved long enough to understand the issues but then chose ''to opt out.''
''From this,'' he wrote, ''one may conclude that the United States is disclaiming any interest in the question and accepts the status of the Defendants as an Indian Tribe.''
The second part of the decision concerned the status of the Westwoods parcel on the western edge of the reservation and showed the spreading impact of the Supreme Court's March 29 City of Sherrill v. Oneida Indian Nation of New York decision. Platt noted that the Shinnethingys held uninterrupted title to the land and relied on it for their firewood. Whether this constituted ''aboriginal title'' with sovereign status had to be considered in the context of Sherrill, he said, which ''altered the legal landscape.'' But these issues, he said, ''may only be resolved at a trial.''