New York v. Shinnecock Indian Nation

• Citation: 523 F.Supp.2d 185
• Decision Date: 30 October 2007
• Docket Number: No. 03-CV-3243 (JFB)(ARL).,No. 03-CV-3466 (JFB)(ARL).,03-CV-3243 (JFB)(ARL).,03-CV-3466 (JFB)(ARL).
• Parties: State of NEW YORK, New York State Racing and Wagering Board, New York State Department of Environmental Conservation, and Town of Southampton, Plaintiffs, v. The SHINNECOCK INDIAN NATION, Frederick C. Bess, Lance A. Gumbs, Randall King, and Karen Hunter, Defendants. Town of Southampton, Plaintiff, v. The Shinnecock Tribe a/k/a the Shinnecock Indian Nation, Frederick C. Bess, Lance A. Gumbs, and Randall King, Defendants.
• Court: U.S. District Court — Eastern District of New York

523 F.Supp.2d 185

State of NEW YORK, New York State Racing and Wagering Board, New York State Department of Environmental Conservation, and Town of Southampton, Plaintiffs, v. The SHINNECOCK INDIAN NATION, Frederick C. Bess, Lance A. Gumbs, Randall King, and Karen Hunter, Defendants.

Town of Southampton, Plaintiff, v. The Shinnecock Tribe a/k/a the Shinnecock Indian Nation, Frederick C. Bess, Lance A. Gumbs, and Randall King, Defendants.

No. 03-CV-3243 (JFB)(ARL).

No. 03-CV-3466 (JFB)(ARL).

United States District Court, E.D. New York.

October 30, 2007.

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Robert A. Siegfried, New York State Office of the Attorney General, Albany, NY, for plaintiffs State of New York, New York State Racing and Wagering Board, and New York State Department of Energy Conservation.

Michael Stewart Cohen of Nixon Peabody, LLP, Jericho, NY, for plaintiff Town of Southampton.

Christopher H. Lunding of Cleary, Gottlieb, Steen & Hamilton, New York, NY, for defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

In the above-captioned consolidated actions, plaintiffs New York State ("New York"), the New York State Racing and Wagering Board (the "Board"), the New York State Department of Environmental Conservation (the "DEC") (collectively, the "State"), and the Town of Southampton (the "Town" or "Southampton") (collectively, the "plaintiffs") seek to permanently enjoin defendants, the Shinnecock Indian Nation (the "Shinnecock Nation" or the "Shinnecock Tribe" or the "Nation" or the "Tribe" or the "Shinnecocks" or the "Shinnecock" or the "Shinnecock Indians"), and its tribal officials sued in their official capacity (collectively, the "defendants"), from constructing a casino and conducting certain gaming on a parcel of non-reservation property known as "Westwoods," which is situated in the western half of the Town in Suffolk County, New York ("Westwoods" or the "Westwoods land" or the "Westwoods site" or the "Westwoods parcel"). Plaintiffs have demonstrated that the defendants' actions and threatened actions with respect to the construction and operation of a Westwoods casino are not in compliance with New York anti-gaming laws and environmental laws, as well as the Southampton Town Code (the "Town Code"). However, because the Shinnecock Indian Nation is asserting immunity with respect to such laws, there are three main legal issues in the case: (1) whether aboriginal title to Westwoods held by the Shinnecock Indian Nation at the time of first European contact in 1640 has been extinguished; (2) whether, even if aboriginal title has not been extinguished, the Shinnecock Indian Nation is barred from asserting sovereignty at Westwoods, under the Supreme Court decision in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005), because of the disruptive consequences that the construction and operation of a casino would have on the Town and the Suffolk County, New York ("Suffolk County") community; and (3) whether there is any legal basis to allow gambling at Westwoods in non-compliance with New York's anti-gaming laws if the proposed casino development is not within the parameters of federal law as set forth in the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. ("IGRA"). This Memorandum and Order sets forth the Court's Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

The Court conducted a lengthy and thorough bench trial, which lasted 30 days, and included over 20 witnesses, over 600 exhibits, and over 4,000 pages of transcripts. After carefully considering the evidence and the law, this Court concludes that the plaintiffs have demonstrated that they are entitled to a permanent injunction that prevents the development of a casino at Westwoods that is not in full compliance with New York and Town laws and regulations.¹

The Court finds that there are three independent grounds for the Court's ruling in favor of plaintiffs. First, the evidence overwhelmingly demonstrated in a plain and unambiguous manner that aboriginal title held by the Shinnecock Indian Nation to the Westwoods land was extinguished in the 17th century. More specifically, a series of colonial era documents demonstrate in clear and unequivocal language that (1) the Shinnecock Indian Nation sold land, which included Westwoods, to non-Indians in the 17th century; (2) the land was subsequently acquired by Southampton; and (3) the sovereign authority of the Province of New York confirmed and ratified the ownership of the land by the Town, including a determination by New York Provincial Governor Richard Nicolls in 1666 in which he confirmed that "all the right and interest" in the land that included Westwoods "is belonging, doth and shall belong unto the town of Southampton" and promised to defend the Town in its peaceable enjoyment of such land "[a]gainst all other claims whatsoever." Although the defendants attempt to point to certain aspects of the historical record in an effort to cast doubt on the meaning or validity of these transactions, the Court, finds their arguments unavailing and concludes that this colonial-era extinguishment of aboriginal title to Westwoods is clear, unmistakable, and valid. Therefore, although there is no dispute that the Shinnecock Indian Nation currently owns and occupies Westwoods, the absence of current aboriginal title for the Westwoods land renders the Shinnecock Indian Nation subject to the application of New York and Town laws in the development of a casino on such land.

Second, even assuming arguendo that the Shinnecock Indian Nation has unextinguished aboriginal title to Westwoods, their proposed casino development is barred under the Supreme Court's decision in Sherrill because of the highly disruptive consequences the development and operation of a casino' would have on the neighboring landowners, as well as the Town and the greater Suffolk County community. More specifically, based upon the evidence offered at trial, the Court concludes that the construction and operation of a casino at Westwoods would have severe disruptive consequences to the administration of governmental affairs, as well as the health, safety, and long-settled expectations of the residents of Southampton. For example, the substantial disruption to the transportation infrastructure in the Town and Suffolk County is undeniable. The evidence at trial demonstrated that' the area in and around Southampton is already plagued with extremely high levels of traffic congestion in the summer months. The only rational conclusion to be drawn from the evidence is that, absent substantial infrastructure improvements (whose cost and feasibility are unknown), the addition of a casino to this already overburdened traffic system would be disastrous and undoubtedly would be highly disruptive to state and local governance and the settled expectations of landowners. In addition, the evidence demonstrated that the operation of a casino would have a multitude of other health and environmental impacts on neighboring landowners and the Town. Therefore, even if unextinguished aboriginal title currently existed, the Shinnecock Indian Nation's delayed assertion of sovereignty over this non-reservation land at Westwoods — after centuries of non-use of the land except for cutting timber and recreational functions — is barred by `aches and other equitable principles under Sherrill.

A third independent ground exists for, the permanent injunction in plaintiffs' favor. It is undisputed that the Shinnecock Indian Nation's planned gaming facility fails to comply with applicable New York law and that the proposed development does not fall within the confines of IGRA, which supplanted any federal common law right of tribes to conduct the type of unregulated gaming that the Shinnecock Indian Nation seeks to operate at Westwoods. The Shinnecock Indian Nation is not recognized by the federal government and Westwoods is not "Indian lands" as defined by the statute and, thus, the Shinnecock Indian Nation cannot utilize the safe-haven that IGRA provides from the otherwise applicable state anti-gaming laws. Therefore, the Shinnecock Indian Nation can only engage in gaming at Westwoods if it is in compliance with current New York gambling laws. Since the operation of a casino at Westwoods would violate New York anti-gaming, laws, there is no legal basis for the Shinnecock Indian Nation to operate the casino.

In terms of the requested relief, defendants argue that a permanent injunction is unwarranted because any harm from the proposed casino is speculative and not imminent. However, there is nothing speculative or remote about the project — the Shinnecock. Indian Nation has a development agreement in place to build a 61,000 square foot ("sf.") casino at Westwoods on 15 acres (which defendants expect to have a capacity to hold 900 to 1,000 gaming machines and 60 table games), it has stated its intention to build the casino without being legally bound by government regulation of any type, and it began clearing trees at Westwoods in 2003 to start the project. Plaintiffs have satisfied the requirements for permanent injunctive relief, including a showing of irreparable harm, if the defendants are not prevented from building a casino in violation of New York anti-gaming and environmental laws, and Town zoning laws and other regulations.

Although the Shinnecock Indian Nation has emphasized to this Court during the trial (and the Court recognizes) the financial importance that the proposed casino has to the Shinnecock Indian Nation as it continues to face substantial economic hardship, this Court's proper role is not to address or remedy those economic hardships, but rather to examine the evidence under applicable law to determine whether the proposed casino development is legally permissible. For the reasons outlined briefly above and in detail in the Findings of...