01.03.07
By Susan J. Greenberg
Future plans for the 79-acre property in Hampton Bays are still being debated by government officials and the Shinnecock Indian Nation. However, members of the Shinnecock, believing current lawsuits go beyond the question of land use, are angered over the ongoing battle about their status as a recognized tribe. Photo by Eagle Eye Air Photo
While several questions have been raised regarding a 79-acre piece of land in Hampton Bays - known as the Westwoods property - members of the Shinnecock Indian Nation are speaking out about the lawsuits, the land use and their overall frustration about dealing with town, state and federal officials.
"This is going way beyond the initial lawsuit," said Shinnecock Tribal Chairman Lance Gumbs. "This now has turned into a question of whether we are Shinnecock. We are the only remaining tribe in the United States who actually live on our original land. It is very painful."
According to Gumbs, what was at issue in the 1600s is directly related to the issues at hand today, which involve questions of land title, rights of land use, and equitable treatment. "Our territory before the settlers came here was from approximately the town border of Brookhaven to the town border of East Hampton," Gumbs said. "That is the land we roamed."
Three lawsuits, according to Gumbs - two in which the Shinnecock are plaintiffs and one in which they are the defendant - bring to light what he characterized as "some very serious transgressions" that must be addressed.
"The town started this by suing us over our use of the [Westwoods] land," said Gumbs, referring to a suit filed by the town in 2003 seeking to stop the Shinnecock from building a 65,000-square-foot casino on the 79-acre parcel they own in Hampton Bays. "This essentially opened up a dialogue about many issues."
Amid protest by local residents as to the ramifications of building this facility, such as crowding and traffic implications, the case, once under the auspices of Judge Thomas Platt, is now being tried before Judge Joseph Bianco in First District Court in Central Islip. The Shinnecock must prove that the land was originally occupied by them in order for it to be officially recognized as part of their main reservation to the east, and a place where gaming would be permitted under federal law.
According to Gumbs, the town and the state are putting their witnesses on the stand, which could take months. When asked about the Shinnecocks' actual plans for the parcel, Gumbs said that building an expansive resort - which some officials from the town of Southampton have raised concerns about - was never a plan. "When they were deposing the tribe, we were asked to turn over all relevant documents, which included outside proposals to us," he explained. "We get hundreds of proposals, none of which we are entertaining. The town is trying to assume what we are going to do."
The final outcome of this case, said Gumbs, is related to another suit filed by the Shinnecock against the US Department of the Interior, which runs the Bureau of Indian Affairs, forcing acknowledgment that the Shinnecock are a federally recognized tribe. Although Platt, in November of 2005, issued a ruling that they are indeed a tribe, Gumbs said that the BIA claims it is not bound by the judge's ruling.
"We submitted our initial papers in 1978, and were thwarted with bureaucracy," said Gumbs. "We were recently recognized by Judge Platt as a tribe. It is not the place of the Bureau of Indian Affairs to interpret. We have recognition and it is a matter of law."
Gumbs explained that there are three methods, as enumerated by a 1994 act of Congress, through which a tribe can get federal recognition. "One way is to go through the process and apply to the Bureau of Indian Affairs," said Gumbs. "The second method is by a declaration by Congress or the president. The third is by declaration of a federal judge. Judge Platt recognized us in 2005 and the federal government needs to respect that decision."
Along with the filing of the petition 28 years ago, said Gumbs, the Shinnecock requested that the DOI sue the town on their behalf for a claim to approximately 3,200 acres, reaching from the Shinnecock Canal to the Southampton Village boundary, "from water to water," which were "unjustly acquired" by the government. Using claims that the petition was incomplete, the BIA denied both the petition and the request for legal redress.
Despite the fact that the Shinnecocks have enumerated other situations in which tribes have been accepted and listed through court decision outside of the BIA administrative process, including native tribes in Alaska and California, Gumbs said that the BIA refuses to recognize Platt's 2005 decision.
Officials from the BIA declined to comment on the judge's ruling, but did say that the Shinnecock Nation is on the list, behind seven other tribes, for active consideration regarding their status as a recognized tribe.
According to Gumbs, the purpose of the third lawsuit, filed by the Shinnecock in 2005, is to once again address this land claim and to seek an equitable solution. However, Platt denied the petition this year on November 28, citing a lack of historical basis.
"The judge used a legal theory called 'latches,'" said Gumbs, "where he said that there was no merit to the case because we waited too long to file, and that we didn't sue 'often enough.' This is ridiculous. We have been protesting the wrongful taking of this land, both legally and culturally, since it happened in 1859, when the land was stolen from us."
In fact, said Gumbs, it was shown in court that the Shinnecock had homes and places of worship in the area since at least the 1800s, and that there was a trial in 1922 in which the Shinnecock challenged a property claim in a case against a landowner. "There were protests and court battles at every turn. We think that the judge did not look at all of the issues. We are seeking redress on this decision before we seek an appeal," Gumbs explained.
Gumbs underscored the history of the Shinnecock, saying that their existence can be traced back more than 10,000 years to the first hunters and gatherers who found their way onto the Island. The heart of the matter for the Shinnecock is the sequence of events in history that Gumbs believes led to their land - and culture - being taken from them by the English colonists in the 17th century.
Government officials believe that, while the Shinnecock own those 79 acres of property in Hampton Bays, there are zoning issues that must be addressed. Arguing for the town of Southampton that the Shinnecocks have no legal claim to build on the Westwoods property and that a gaming facility would bring undue traffic and congestion to the area, Michael Cohen, an attorney from the firm Nixon Peabody, said that the real issues are zoning and land use regulations. "It is not whether the tribe owns the property," said Cohen. "They do. What is being contested is whether [Westwoods] enjoys a special status that makes it immune from zoning regulations and state gaming and environmental law."
In order to contest claims by the Shinnecock that the land does enjoy special status, Cohen explained that the town is relying upon the testimony of what he called an "ethno-historian" named James Patrick Lynch, who has a master's degree and "all but a final dissertation" in the study of the indigenous tribes of the Northeast. "He has been working on this matter and has been engaged in connection with this litigation for several years," said Cohen.
"He [Lynch] is a hired gun," Gumbs contended, "used by entities to refute the land claims of tribes. He is a former air conditioning mechanic turned so-called ethno-historian who dropped out of the University of Connecticut in the middle of his doctoral program. He has admitted in court that he has never found a tribe that would qualify for a land claim. How can this be?"
However, according to Cohen, for Westwoods to "have the special status of immunity from local and state law is to disregard 300 years of history about that property." Cohen said that "aboriginal title" must be proven about the parcel for it to enjoy such status, showing that the Shinnecock used it throughout history. "There simply is not enough title evidence to show that this property should have such status," said Cohen.
The Shinnecocks disagree. Will Reed, a member of the Shinnecock Indian Nation, noted that federal recognition from the BIA is not just about building a casino. "It is also about the ability under the federal program for us to acquire certain benefits, such as mortgages and medical and educational assistance," Reed said. "We would be open to federal money to help us complete our infrastructure and start our own police department, which will not only help us, but the community as a whole."
Cohen said that it is the town's intention to examine the potential environmental and traffic effects of a casino or resort, in case it is the Shinnecocks' plan to build one. "In spring of 2003, they announced their plan and cleared five acres," said Cohen. "A resort as big as Foxwoods could be built, with the only limits being economics and imagination."
"Where would we build Foxwoods?" asked Gumbs. "There is simply not enough room. The building that we planned was only as big as the biggest house in Southampton."
Regarding the issues of traffic, Gumbs said that there have been several attempts by the Shinnecock to negotiate with the town and the state to construct an exit off of Sunrise Highway that would prevent traffic overflow into Hampton Bays. "The area on Sunrise Highway surrounding the rest stops is Shinnecock land," said Gumbs. "We can work with the government to ease any traffic concerns, if they want to work with us."
Reed added that he believes a casino could be a financial advantage for the area. "People have to realize the economic benefit to the entire East End of having a large corporation here like a casino, where there is essentially no industry," said Reed. "Even if every member of the Nation quit their jobs and worked at the casino, we would still need to hire 3,000 to 5,000 local employees, who would get full pension and medical benefits, tuition reimbursement and salaries that are much higher than what is being offered in this area by local businesses now. It is hard to make a living out here and building this casino is about security for everyone on the East End, not just Shinnecocks. We want to include everyone.
