Bloomberg added to discrimination-conspiracy lawsuit

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MASTIC, N.Y. – A year after filing a discrimination lawsuit against Suffolk County and its officials, the Unkechaug Indian Nation has expanded its action to include New York City Mayor Michael Bloomberg and other leaders in both their official and individual capacities, and has added conspiracy allegations to the mix.

The original civil lawsuit was filed in December 2008 by the nation and Chief Harry Wallace in his capacity as chief and as an individual, and named Suffolk County, Suffolk County Police Department, Police Commissioner Richard Dormer, County Executive Steve Levy, County District Attorney Thomas J. Spoda, and “John and Jane Doe 1-100” as defendants.

The lawsuit alleges First, Fourth and 14th Amendment violations of tribal members’ freedom of speech, religion and assembly; their freedom against unreasonable searches and seizures; and their right of equal protection or due process.

It was filed in response to a blockade in December 2008 of the nation’s Poospatuck Reservation by armed members of the Suffolk County Police Department who stopped cars entering and exiting the reservation and allegedly harassed and threatened tribal members.

The blockade was part of the longstanding tobacco war in which the state has attempted to force Indians on reservations to collect taxes on cigarette sales to non-Indian customers. The nations refuse to do so based on their status as sovereign.

A few months before the blockade, the City of New York jumped into the battle when Bloomberg filed a federal lawsuit accusing eight Unkechaug reservation smoke shops of breaking state and federal laws by selling cigarettes in bulk to bootleggers who resell them in the city. He claimed that “unpaid taxes” from “illegal cigarette sales on Indian reservations across the entire state total over $1 billion a year.” The case is pending.

The nation’s discrimination lawsuit was amended in December 2009 and now includes tribal council member Thomasina Mack as a plaintiff, and names as additional defendants New York City itself, several city attorneys in their official and individual capacitates, and Bloomberg as mayor and as an individual.

“We included people who were involved in a concerted effort to discriminate solely against our tribe and have the police department engaged in a blockade. The City of New York encouraged the blockade, they encouraged and solicited support from Suffolk County directly, and while both reservations on Long Island are engaged in the sale of unstamped cigarettes, which we contend is lawful, they only brought a lawsuit against our tribe,” said Wallace, who is an attorney. The other Long Island reservation is owned by the Shinnecock Indian Nation.

The lawsuit says the police blockade prevented tribal members from participating in religious services, events and political meetings. Specifically, the lawsuit says Wallace and Mack were “deprived” of conducting a previously scheduled tribal meeting and business with members and “did not leave the reservation as planned due to fear of police force against them and their families.”

“Our basis for that is city attorneys attended a meeting when Suffolk County legislators were determining whether or not they wanted to commence a legal action against the Unkechaug and the New York attorneys made a presentation that they should. Newspaper articles attest to that, plus we have a tape where all these individual attorneys were present at the meeting,” said James Simermeyer, the nation’s attorney.

Naming the officials as individuals covers all bases, he said.

“It creates a situation where the city has to say the individuals did it (the blockade) with the authority of the city or they acted outside the authority so it gives us a clear picture of whether this was an official act or not.”

If the discrimination allegation is upheld, the end result will be a determination of whether it was an official or individual act of discrimination.

Suffolk County officials filed to have the case dismissed, claiming the nation does not have standing to file a discrimination lawsuit.

“The county is trying to say it’s only individuals who can bring a discrimination lawsuit because it affects individual rights. We’re saying that’s not true. We’re arguing that the tribe can bring a discrimination action in its representative capacity as the people who provide for and protect tribal members,” Simermeyer said.

“So, if worst comes to worst and they (the court) says the tribe can’t file a discrimination lawsuit, then they’ll just have 350 people signing up and saying they were violated.”

The city defendants have asked for an extension to respond to the amended case, which is pending before federal District Court Judge Thomas Platt.

Meanwhile, in another tobacco-related case, the 2nd Circuit Court of Appeals will hear the nation’s appeal of a ruling by federal Judge Carol Bagley Amon that state cigarette tax laws apply to Indian reservations.

Amon’s ruling runs up against a state Supreme Court injunction against enforcing the state’s cigarette tax laws until a viable tax exempt coupon system for tribal members is established or until the issue is resolved in the state’s highest court.

“Our appeal is that she should have kept the status quo until the court makes its determination. She basically said the state doesn’t know what they’re doing with their own laws, which is kind of unusual for a federal judge to do. The federal government and federal courts aren’t to determine state laws concerning their taxes and citizens,” Simermeyer said.

Suffolk County is “vigorously” defending the lawsuit, County Attorney Christine Malafi said.

“At no time did Suffolk County act in any way or with any intent or effect of discriminating against anybody on the reservation. The county only seeks to prevent the violation of laws that could harm the public.”

Asked what those laws were, Malafi said, “I believe it was some traffic laws and then the only other thing the police department does is there is a law prohibiting the transport of unstamped, untaxed cigarettes in bulk. I think it’s 20 cartons. I think there’s a law that you can’t have more than that.”

Malafi said police arrested people for transporting unstamped, untaxed cigarettes, but she did not know if any were Unkechaug reservation residents. She could not say whether the prohibition against transporting unstamped, untaxed cigarettes applies to Indians, who are exempt from taxes on cigarettes purchased on sovereign Indian land.

“I can’t answer. There’s a lawsuit pending with respect to that issue.”