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Oct 2, 2013 9:26 AMPublication: The Southampton Press

Tribe Loses Again In Effort To Claim Thousands Of Acres In Southampton Town

Oct 2, 2013 10:11 AM

A U.S. Court of Federal Claims judge has dismissed a second attempt by the Shinnecock Indian Nation to lay claim to thousands of acres of land in eastern Southampton Town that they say was wrongly taken from them in the 18th century.

In an August ruling, Judge Emily C. Hewitt granted motions filed by the U.S. attorney general’s office to dismiss the tribe’s claim that the federal government has denied it the right and ability to reclaim or seek compensation for the wrongful taking of its land. Judge Hewitt ruled that the Court of Federal Claims does not have jurisdiction to consider the case, because the tribe is not without other recourse, and because a previous ruling by a Federal District Court does not violate federal common law.

It is the second time that the tribe’s claim to some 4,400 acres of its ancestral lands east of the Shinnecock Canal, which includes most of the Shinnecock Hills region, has been dismissed by a court. In 2005, the District Court dismissed the initial land claim brought by the tribe on the basis that the long amount of time, and the generations of development on the land being claimed, made it unrealistic and unreasonable for the Shinnecocks to expect to have the land returned to them or be compensated monetarily—or in the form of property—for lost benefits of not having owned the land over the last three centuries.

“The wrongs about which the Shinnecocks complain are grave, but they are also not of recent vintage,” the District Court ruling read at the time, “and the disruptive nature of the claims that seek to redress these wrongs tips the equity scale in favor of dismissal.”

The tribe’s appeal of that ruling is still pending.

The more recent suit was brought by the tribe against the federal government and charges that the District Court decision robbed them of their rights to redress centuries of wrongdoing against them. But in her decision, Judge Hewitt ruled that the tribe’s federal claims suit was not “ripe” because the appeal of the previous litigation is still pending and therefore not within the jurisdiction of the claims court.

“A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all,” Judge Hewitt’s decision reads, quoting from an earlier court ruling. “Plaintiff ... does not describe how denying consideration of this action would have an immediate and substantial impact on plaintiff.”

None of the Tribal Trustees responded to a request for comment on the lawsuit this week, and calls placed with the attorneys who argued the case for the tribe—California-based Native American law specialists Fredericks Peebles & Morgan—were not returned.

The assistant U.S. attorney general who argued the federal government’s side of the case, Maureen E. Rudolph, said Tuesday that she could not discuss the case because it is not one that is specifically exempted from the constraints of the government shutdown.

In recent decades, land claim lawsuits have been an important and effective tool for some Native American tribes to establish new reservations of “tribal lands” for development and agreements with local governments to allow for casinos. A land claim suit brought by the Oneida Nation in upstate New York won that tribe land that is now home to the Turning Stone Casino Resort, and a settlement this past spring that will place 25,000 acres of land in a federal trust for tribal developments, including casinos, across 10 upstate counties.

The Shinnecocks have spent more than a decade trying to secure the rights to develop their own casino, and many in the tribe thought that the land claim was their strongest leverage to secure agreements with the state government that would award them large plots of undeveloped land and the right to operate a casino. The tribe’s now estranged financial backers, Detroit-based developers Michael Malik and Marian Ilitch, had funded the land claim legal fight but had been at odds with some in the tribe over whether securing large swaths of land for the Shinnecocks should be a priority over the quickest possible development of a casino somewhere on Long Island or near New York City.

After fierce tribal infighting that led to the ousting of two Tribal Trustees and two tribal Gaming Authority members who had been pursuing development options for the tribe outside of their agreements with Mr. Malik and Ms. Ilitch—the latter being the wife of Detroit Tigers and Detroit Red Wings owner Michael Ilitch—the developers suspended millions of dollars in annual financial support for the Shinnecocks. They have not been assisting with the Shinnecock casino effort for nearly a year, according to reports.

With a statewide referendum on the November ballot that would legalize the development of at least four casinos—none on Long Island—Governor Andrew Cuomo’s office has not agreed to discuss any tribal casino options with tribal representatives.

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