Judge: Unkechaug meets tribal sovereignty, immunity criteria

MASTIC, N.Y. – A federal district court judge has ruled that the Unkechaug Nation, a state-recognized tribe, is a sovereign nation with immunity from being sued.

In a ruling issued Oct. 8, U.S. District Court Judge Kiyo Matsumoto for the Eastern District of New York said the Unkechaug Nation meets the Montoya test for tribal sovereignty.

“The court finds that defendants have established by a preponderance of the evidence that the three Montoya criteria are satisfied. Consequently, the Unkechauge meets the common law definition of a ‘tribe’ and is entitled to immunity from suit in the present action,” Matsumoto said, using one of the various spellings of the nation’s name.

Matthew Fletcher on the Unkechaug ruling

There is a smattering of cases like this. The court held that a federally recognized tribe is immune from suit. The court also said non-recognized tribes can be held immune by a court if it meets a common law test named after a 1901 Supreme Court case called Montoya v. United States. This common law test, used during a period before Interior began to keep track of all the tribes, was used by courts in the 1970s to determine whether an Indian tribe could bring land claims. Unkechaug met the Montoya test, and according to the district court, it is immune from suit. The only other case I know of is from the Michigan Court of Appeals in Huron Potawatomi, Inc. v. Stinger – 1997 – it involved the tribe that is now the Huron Nottawaseppi Band of Potawtomi Indians, recognized shortly thereafter. That court didn’t use the Montoya test, and seemed to just be taking the tribe’s word for it – it did have a very strong case for recognition, which came through in 1998. The Montoya test is much more difficult to pass than Stinger, given that tribes like Unkechaug actually have to prove pretty much the whole panoply of criteria that shows up in 25 CFR Part 83, only to a federal court. One would think that proving tribal status to a federal court using virtually the same criteria would make the FAP (federal acknowledgment process) easier for this tribe, and definitely more interesting. Maybe other tribes should find a way to get into court to try the Montoya test route. Probably just as expensive as the FAP, but maybe less political, if you get the right judge and expert witnesses. Matthew Fletcher is a professor of Indian law at Michigan State University College of Law, director of MSU’s Indigenous Law and Policy Center, and an appellate judge for the Pokagon Band of Potawatomi Indians, the Turtle Mountain Band of Chippewa Indians, and the Hoopa Valley Tribe. He is an enrolled member of the Grand Traverse Band of Ottawa and Chippewa Indians.

The present case is a long running lawsuit filed by tycoon John A. Catsimatidis, who owns, among other things, more than 50 Gristedes supermarkets located throughout New York City and nearby areas.

Catsimatidis claimed that the Unkechaug Indian Nation and the Shinnecock Tribe, both on Long Island, violated civil laws, the Racketeer Influenced and Corrupt Organization Act, and statutes prohibiting false advertising and deceptive trade packages by selling untaxed cigarettes that undermined profits at his supermarket empire. He asked the court to force Indian retailers to buy cigarettes from wholesalers at the taxed price and sought $20 million in damages from the tribes.

All of the charges, including the RICO allegations, against the tribes and tribal members in their official capacities were dismissed. However, Unkechaug Chief Harry Wallace “as sued in his individual capacity and his capacity as owner of the Poospatuck Smoke Shop’s motion to dismiss. … is denied,” Matsumoto said. The only remaining allegation involves a claim of unfair advertising of “tax free” cigarettes.

“On the eve of Columbus Day, once again we have met and defeated a challenge to the nation’s sovereignty and existence as a people,” Wallace said in response to Matsumoto’s ruling. “The federal court acknowledged what we have known all along – that we have a right and a responsibility to do what is in our people’s best interests.”

“We will continue to challenge. … anyone else who wishes to make us a scapegoat for their economic troubles,” Wallace said.

Catsimatidis could not be reached for comment.

A substantial part of Matsumoto’s 89-page decision analyzes the Montoya criteria in light of the arguments presented by Dr. John Strong, professor emeritus of Long Island University, and by James Lynch, who argued on behalf of Gristedes, at a hearing.

Montoya v. United States is a 1901 U.S. Supreme Court decision that defined tribal status. The “three Montoya criteria” involve a group of people “of the same or similar race,” “united in a community under one leadership or government,” and “inhabiting a particular, though ill-defined territory.”

Strong has a Ph.D. in social studies from Syracuse University. He is an expert in Native Americans in colonial America, particularly the Indians of the East Coast and Long Island. His new book, “A History of the Unkechaug Nation,” will be published this fall.

Strong provided detailed evidence from documents and court records dating from the 17th century to present, accounts by visitors to the nation’s land, newspaper clippings, political and kinship connections, land conveyances, missionaries’ records, the establishment of an Indian school at Poospatuck, archeological research and more to back up his claims that the present day nation meets the three Montoya criteria.

He noted, for example, that the Unkechaugs, like other eastern coastal tribes, intermixed with Europeans and African Americans from the 17th century on, but always maintained their Indian identity and culture.

Lynch, on the other hand, presented a purity of race argument, claiming that intermixing with other races resulted in the Unkechaug not being “of the same or similar race.”

“Mr. Lynch relied on an account from 1883 that stated, in part, ‘there was never any tribe of Poospatuck Indians. They are much mixed with the Negroes and probably not more than three could be presented who have the Indian features,’” Matsumoto said.

In supporting his claim that the Unkechaug lacked a united community and leadership in the 19th century, Lynch relied on an 1850 document “replete with terms and overtones that would be considered racist by contemporary standards,” Matsumoto said.

The judge said the court questioned Lynch about his use of the Ph.D. designation on his curriculum vitae, “given that he does not, in fact, have a Ph.D. Specifically, Mr. Lynch’s C.V. states ‘Ph.D., anthropology/History (abd.) (Ethnohistory, Sociocultural Change).’ Mr. Lynch explained that the ‘(abd.)’ designation on his C.V. indicates ‘all but dissertation,’ which Mr. Lynch stated clarifies his status. The court respectfully disagrees. Without Mr. Lynch’s oral explanation, Mr. Lynch’s C.V. in combination with his chosen format appears to represent that he earned his Ph.D., even though he did not,” Matsumoto said.

When asked to describe his research methodology for reviewing historical documents, Lynch responded, “I believe if there’s no evidence to prove a point, the point is not proven.”

Lynch is well-known on the East Coast and beyond for his “research” against tribal nations seeking federal acknowledgment and his association with the anti-Indian sovereignty organization One Nation United. In Connecticut alone he has worked against the Schaghticoke Tribal Nation, the Eastern Pequot Tribal Nation and the Golden Hill Paugussett Indians. He has provided “research papers” or testimony against the Mashpee Wampanoag and the Shinnecock Indian Nation. He has self-published two books about Connecticut Indians that were not peer reviewed.

Matsumoto noted that in nine out of 10 cases in which Lynch has testified as an “expert witness,” Lynch “found adversely” to the tribe’s bid for federal acknowledgment. In the single case in which he found in favor of the tribe, he was hired by a client that supported tribal recognition, Matsumoto said.

Lynch’s testimony on the Montoya criterion regarding community and leadership, is “particularly results-driven,” Matsumoto said. “It appears that Mr. Lynch ultimately chose what evidence to rely on and the weight to be given that evidence based on whether it supported his client’s position and his ultimate conclusions.”

Asked to respond to Matsumoto’s comments about his work, Lynch sent a 13-page paper reiterating his interpretation of the Montoya ruling and his views on why Unkechaug did not meet the Montoya criteria.