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Unkechaug files discrimination suit against Suffolk County

POOSPATUCK RESERVATION, N.Y. – The Unkechaug Indian Nation has filed a federal lawsuit charging Suffolk County and its officials with discrimination and other civil rights violations after tribal members were harassed and searched by police blocking the entrances and exits to the nation’s Poospatuck Reservations in early December.

The civil lawsuit was filed Dec. 19 by the nation and Chief Harry Wallace in his capacity as chief and as an individual. The lawsuit names 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 defendants are charged with First, Fourth and Fourteenth Amendment violations – abridging tribal members’ freedom of speech, religion and assembly; their freedom against unreasonable searches and seizures; and their right of equal protection or due process.

Levy did not return a call seeking comment by press time.

The suit also charges that the named plaintiffs conspired with as yet unknown third parties – the John and Jane Does – who are in litigation with the tribe or its individual members and their reservation businesses to violate their constitutional rights.

The lawsuit says that Suffolk County Police Department dispatched a number of police cruisers on Dec. 6 to block the reservation’s entrances and stop cars.

“The vehicle stops by police were used to search residents of the Poospatuck Indian Reservation in order to threaten and intimidate the individual Indians from freely moving from one place to another and stopped vehicles going into and out of the reservation,” the lawsuit says.

Wallace said the police actions were done under the “pretext” of public safety – a seat belt check – but the tribe was the only community affected.

“It was a totally discriminatory act. We have an excellent case to prove pretext, which is the essence of discrimination – the pretext for an ulterior motive. Given recent events, we felt it was incumbent upon us to take steps to protect the community,” Wallace said.

The tribe has been at the confluence of events in the ongoing tobacco wars against Indian nations whose territories are bordered by New York state.

Elected officials turned up the heat in 2008 on efforts to force reservation smoke shops to collect taxes on cigarettes sold to non-Indian customers. The tribes refuse to do so because they are sovereign nations and, therefore, not required to collect taxes for other sovereigns.

State law clearly says that the consumer is obligated to pay taxes on goods purchased “through the Internet, by catalog, from television shopping channels or on an Indian reservation.” The state even has a special form called Cigarette Use Tax Return. CG 15, printed in June 2008, for consumers to file with the tax department.

In September, New York City Mayor Michael 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. A day before the police blocked the reservation entrances, a federal judge refused to grant the city an injunction to stop the eight shop owners’ sales. The judge heard their arguments claiming sovereign immunity.

The police blockade also happened while the Suffolk Legislature debated and ultimately voted 17-1 to join New York City’s lawsuit. The county is claiming millions of dollars in what it calls “lost taxes” from reservation tobacco sales to non-Indian consumers.

During its debate over whether to sue the tribe, the Suffolk County Legislature discussed the November raid and seizure of cigarettes by two western New York county sheriffs against the Cayuga Indian Nation’s convenience stores, Wallace said.

“Given the nature of things, we were scared to death that they (the Suffolk County Police) were going to come in here guns blazing. They did this once before in December 2005 and we filed a complaint with the Suffolk County Human Rights Commission and they (the police) agreed not do this anymore, so it was a violation of that understanding,” Wallace said.

Unkechaug Nation is also in the midst of a federal lawsuit filed by New York tycoon John A. Catsimatidis, a businessman and politician who claims that tax-free cigarette sales at the Unkechaug and Shinnecock tribes’ reservations on Long Island undermined profits at his supermarket empire of more than 50 Gristedes stores. The judge tossed out most of Catsimatidis’ charges last December, and just recently heard the tribe’s arguments claiming sovereign immunity.

Rulings on sovereign immunity in both cases are pending.

Catsimadtidis recently asked the court to consolidate his case with the New York City lawsuit.

Wallace and the tribe’s attorney James Simermeyer of Manhattan said it’s no coincidence that the police blockade took place within the context and timing of all of these legal actions, and that’s why the Unkechaug’s discrimination lawsuit also charges the Suffolk County plaintiffs with conspiracy.

“We’re trying to find out who ordered the blockade. Somebody had to order the police to do that. We don’t know who bears the ultimate responsibility – yet,” Wallace said.

Simermeyer said he expects to fill in the “John and Jane Does” on the lawsuit.

“Information has been passed back and forth before it was even filed with the courts. We know that for a fact. You don’t have to be a scholar or a lawyer to figure that out. The conspiracy statute is about collusion to commit discrimination against people. We don’t know where it’s going to go but we have a feeling it’s going to lead to a lot of interesting places,” Simermeyer said.

Simermeyer said he expect the county will file to dismiss the case, but he’s confident of the tribe’s position.

“It’s unusually for me to do this, but the discrimination thing offends me more than anything. It’s outrageous to violate people’s right to go and come as they want. Democracy was taught by the Indians to the settlers, and now they’re just going to turn it back when it suits them? Just for a few dollars? Amazing,” Simermeyer said.

Wallace, too, is hoping for a good outcome – but sooner rather than later.

“We’re positive to overcome all of these things. I just don’t want to overcome posthumously,” he said.