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Mar 4, 2009 12:05 PMPublication: The Southampton Press

Supreme Court ruling might give local governments jurisdiction over tribe-owned casinos

Mar 4, 2009 12:05 PM

A recent ruling by the U.S. Supreme Court appears to give states and local municipalities authority over some lands purchased by Native American tribes and targeted for commercial developments, such as casinos.

Representatives of the Shinnecock Indian Nation, which has proposed building a casino somewhere in Suffolk County, maintain that last week’s court decision does not appear to limit the tribe’s possibilities.

“The ruling does not apply to the Shinnecocks,” tribal attorney George Stankevich said. “The ruling refers to the [Indian Reorganization Act of 1934]. The Shinnecocks were a federally recognized tribe in 1934.”

Mr. Stankevich said that federal lists compiled annually in the late 19th and early 20th centuries by federal Indian agents—liaisons between the Department of the Interior and the Native American tribes in each state—show the Shinnecocks as among New York’s recognized tribes each year, up until 1943. The tribe has a lawsuit pending in federal court demanding that it be placed on modern federal recognition rolls simply because of these prior references.

If Mr. Stankevich’s interpretation is right, the opinion would seem to give the Shinnecocks a small and ironic victory in light of their now eight-year-long struggle to be included on the federal recognition rolls. The tribe has repeatedly tried to force its way onto the list through the courts, and won a partial victory in 2003 when a federal judge awarded it federal recognition.

But despite the tribe’s standing in 1934, the federal Department of the Interior currently has refused to acknowledge the federal judge’s ruling—thus, the Shinnecocks still officially lack federal recognition, which is required for any gaming facility to be built.

In last week’s ruling, the U.S. Supreme Court majority found that the Narragansett tribe in Rhode Island could not free a parcel of land it purchased in 1991 from local zoning by placing it in a federal trust because the Narragansetts were not a federally acknowledged tribe in 1934, when the Indian Reorganization Act gave the federal government the right to hold lands for a tribe.

The majority opinion—only Justice John Paul Stevens dissented—said that the act references tribes that were recognized by the federal government at the time of its writing, and not those that were awarded federal recognition afterward.

The Narragansett tribe was officially disbanded by the Rhode Island state government in 1880, but won federal recognition through the Bureau of Indian Affairs in 1983.

The Shinnecocks also lost a four-year court battle with Southampton Town last year over their right to develop a casino on tribe-owned land in Hampton Bays. A federal district court judge ruled that the Newtown Road property was not sovereign tribal land and, as a result, is subject to local zoning codes, precluding any commercial development.

Since that ruling the tribe has approached Suffolk County lawmakers to pitch the possibility of building a casino somewhere else in the county, on land that they would purchase and put into federal trust, freeing it from local zoning restrictions. County officials have been receptive to discussing the idea, in part because of the economic development benefits they see in such a venture.

The U.S. Supreme Court ruling last week would seem to leave that possibility open to the Shinnecocks. The tribe has said that there are a number of large tracts of land that would be suitable for a casino, including parcels in the former Northrop Grumman facility in Calverton and along Sunrise Highway in Westhampton.

Attorney Michael Cohen, who represented Southampton Town in its case against the Shinnecocks, said that the ruling’s impact on the tribe is still unclear.

“If a tribe gains federal recognition, there is a process by which a tribe can put into federal trust land that can be used for a gaming operation,” Mr. Cohen said. “The determination of the court was to ... hold explicitly that the phrase used in the organization act—‘now under federal jurisdiction’—refers only to tribes that were under federal jurisdiction at the time, in 1934.

“As far as the federal government is concerned, the tribe is not recognized yet, nor is any of its land,” he continued.

Shinnecock Tribal Chairman Lance Gumbs said this week that the tribe is now focused on earning federal recognition, not building a casino. Aside from paving the way to construct a casino on the East End, federal recognition would allow the tribe to apply for financial assistance from the federal government, including a share of the $787 billion federal stimulus package. Without federal recognition, Mr. Gumbs noted, the tribe is not eligible to receive any of the nearly $2.5 billion in infrastructure development and aid money earmarked for Native American tribes.

“We’ve got a day care center up here, we’ve got roads that need repair, shovel-ready jobs,” Mr. Gumbs said, “but we’re left out of it all because we’re not federally recognized. It’s just another thing we’re missing out on because of the lack of recognition.”

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A state or county have jurisdiction on Indian lands? That circumstane is pre-empted by the Federal Indian Non-Intercourse Act, only Congress can have input on jurisdictional matters.
By Rezzdog (3), Malone on Mar 4, 09 6:53 AM
Oh yes, the Supreme Court does not legislate laws or change laws. they interpret them.
By Rezzdog (3), Malone on Mar 4, 09 6:54 AM
The 1790 "Indian non-Intercourse Act (as amended) only applies to conveyances of Indian Lands (not jurisdiction over them) and Indian treaties. Congress prohibited the making of any more "IndianTreaties" by Acts of Congress in 1871 and 1884.
The recent Carcieri decision provides that No tribe acknowledged by the federl government since 1935 is eligible to bring land into federal Indian trust status under the Indian Reorganization Act, 25 USC 465, 479 unless they were "under federal jurisdiction" ...more
By Equalitylaw (1), Goleta on Mar 4, 09 3:08 PM
Equalitylaw, not really. The Continental COngress had other ideas about Indian nations autonomy. See below.

The U.S. Continental Congress was grateful to the Oneida for their aid and contributions towards American victory. The U.S. Continental Congress expressed their gratitude, “We have experienced your love, strong as the oak, and your fidelity, unchangeable as truth. You have kept fast hold of the ancient covenant chain and preserved it free from rust and decay, and bright as silver. ...more
By Rezzdog (3), Malone on Mar 4, 09 8:43 PM