An unpredictable judge, mountains of ambiguous evidence, and a cruise into uncharted legal waters have left Southampton Town's and New York State's federal court challenge to the Shinnecock Indian Nation's plans for an East End casino a judicial "pick ‘em" in the eyes of observers.

The players on each side, though, continue to express confidence that their argument is the only logical choice. But even as the court proceedings get underway today, January 22, questions remain about exactly when the trial will start, who will be involved, and even whether there will be a trial at all.

Teams of attorneys for the two sides were slated to appear in U.S. District Court in Islip today before Judge Thomas C. Platt for the eighth time. Last month, Judge Platt, whose early rulings and comments from the bench have made it difficult to interpret which way he may be leaning, scolded attorneys for the state and town for slow preparation and set today's hearing as an absolute deadline for revealing the evidence they say will support their challenge.

After the evidence is aired, Judge Platt could take a variety of actions: they run the gamut from a flat denial of the Shinnecocks' right to build a casino without first navigating the years-long Bureau of Indian Affairs "federal recognition" process, to an equally clear-cut acknowledgement of Shinnecock sovereignty that must be honored by the town, state and federal governments—effectively granting them the right to open a gaming facility. Or the outcome could be one of a wide range of possibilities between those two absolutes.

"The parameters of what he could do are almost infinite, I think," said State Assemblyman Fred W. Thiele Jr., an opponent of the casino plan, assessing the judge's options last week. "It's virtually a clean slate as to what this judge could do. Based on what has happened in this case already, basically, anything you can conceive of seems within the realm of possibility."

Judge Platt, whom sources said is known in judicial circles as something of a maverick and notoriously unpredictable, has baffled those looking for a signal as to where the case may go. He has changed course at least twice, alternately handing down rulings that appeared to lend credence to the arguments of one side and then the other; supporters and opponents of the Nation's proposal quickly grabbed at each instance as evidence that they had the upper hand.

The first hearings before him, last July, left the Shinnecocks confident when Judge Platt refused to return the case to State Supreme Court, and his questioning led them to believe that he might lift a preliminary injunction prohibiting construction on the tribe's Westwoods site in Hampton Bays. But the judge did a quick about-face and decreed that the state had a strong challenge to the Shinnecocks' right for a casino and granted an indefinite injunction until a trial could be held.

This fall, Judge Platt offered an effectively split decision that said the tribe would have to get federal recognition through the Bureau of Indian Affairs but gave the bureau only 18 months to conduct their review—a process that can typically take a decade or more.

Then, after the BIA told Judge Platt there was no way they could conduct a review of the Shinnecocks' tribal status in the time frame he imposed, the judge re-seized control of the case and said that he planned to make a precedent-setting ruling on the tribe's sovereignty claim, and that a trial should begin as soon as conceivably possible.

Most recently, the judge seemed to give the Shinnecocks another major boost when, besides scolding opposing attorneys and effectively accusing them of laziness, he stated repeatedly that the burden is on the state and town to convince him that the Shinnecocks are not a sovereign entity despite the fact that the state recognizes the tribe and has treated it as a sovereign nation for 200 years.

In another encouraging note for the tribe, Judge Platt enjoined the federal government to the case, saying that it would have to be bound by any decision he made as well—suggesting that federal recognition might be part of his ruling.

But at the same time, Judge Platt, in a seeming afterthought, also left open doubts that the Hampton Bays property the tribe has proposed to use for the casino could be considered tribal lands and would be exempt from local zoning—in essence, echoing one of Southampton Town officials' key legal points.

Nonetheless, both sides of the legal dispute are claiming to be confident of their legal advantage, even as both must carry certain amounts of uncertainty into their preparations.

"Our attorneys are gathering very strong evidence and are looking forward to their day in court," said Donna Giancontieri, the assistant to the Southampton Town Supervisor Patrick Heaney. "We're maintaining that [a casino] is not legal on their property. End of story."

But representatives of the Shinnecock Indian Nation are not so sure that the town's attorneys will ever get their day in court. Attorney George Stankevich, who represents the tribe, said he expects that when the judge reviews the state's and town's evidence, he will find insufficient facts to back up their legal challenges. As a result, Mr. Stankevich says, he may decide that a trial is not needed at all and will simply rule in favor of the tribe, clearing the way for construction of a casino on tribe-owned land off Newtown Road in Hampton Bays.

"I see this judge cutting the issues down one by one," Mr. Stankevich said this week. "He'll say: ‘What are you disputing? Okay, where's the evidence?' When they can't produce it, he'll move on. There may not even be a need for a trial. From what we've received from them, there is very little to try."

There remain a handful of wildcards besides Judge Platt's own actions.

It remains to be seen how the U.S. Attorney's Office will respond to being enjoined in the case. The federal counsel is rumored to be preparing an appeal to the judge's action, but as yet no motions have been filed. Such a move could upset the entire flow of the trial if the judge remains resolute in his demand that the federal government be held to his ruling.

Save an appeal by the state, most feel a trial would likely commence by late February, though Judge Platt's whim may come into play again—he might push a trial date ahead considerably, almost to as soon as he wants.

And then there is the appeals process, which is certain to be the first move of whichever side comes out on the short end of Judge Platt's eventual decision. Judge Platt is basing his authority to issue a ruling on the tribe's sovereignty on a 2nd U.S. District Court of Appeals decision that he says gives him that power. State attorneys say there is subsequent case law that counters this authority.

Either way, the case might well have the right components to land in the lap of the U.S. Supreme Court—assuring that the nation's highest court will decide the issues to be unveiled in Islip today.

Copyright The Southampton Press