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District court rules for Shinnecock

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SOUTHAMPTON, N.Y. -- With a loud slap at the BIA, a federal judge has ruled
that the state-recognized Shinnecock 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 Shinnecock 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 Shinnecock 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 Shinnecocks. "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 Shinnecock 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 Shinnecocks 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 Shinnecock 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 Shinnecock 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 Shinnecock. He also cited the
Shinnecocks' 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 Shinnecocks 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."