They had applied for federal recognition, a prerequisite for opening a casino, almost 25 years earlier, and were still waiting for a decision.
But soon after New York State and Southampton Town sued the tribe to make it stop construction, something unusual happened: In an unprecedented move, U.S. District Judge Thomas Platt announced that he would bypass the federal Bureau of Indian Affairs and decide for himself whether the Shinnecock should be recognized. When he did that, he effectively threw out several decades of U.S. Indian legal tradition.
At Platt's encouraging, the parties in the case will meet this week to see if they can resolve their differences. If the case goes forward,it could change not only the face of the Hamptons, but also the issues of federal recognition and Indian gaming for the entire country. Until now, there has been nowhere for tribes to go after their applications get backlogged with the BIA,, except in rare cases when they can get Congress to rule on their status. Now such tribes could look to the courts for relief, a development that could fast-track American Indian casino projects across the country and possibly change the tribal recognition process nationwide.
"It would be huge," said Eric Eberhard, whose Seattle-based law firm, Dorsey and Whitney, represents about 55 tribes around the country. "It would mean that for tribes in the recognition process [with the BIA] there would now be a precedent that would suggest they could go to the judiciary and be recognized. That's never happened before."
At least one Shinnecock tribe member said he was hopeful that the meeting ordered by Platt this week could lead to a settlement in the case. Town and state attorneys, however, assert that they will not negotiate as long as a casino is on the table.
If they don't settle, the trialis set to begin April 24. Once the proceedings begin, it's anybody's guess what will happen, but there are a few possibilities.
The first thing Platt must decide, experts agree, is whether the 500-member tribe can be sued at all. The tribe's lawyers have argued from the start that the state cannot sue the Shinnecock Nation, much as the state could not sue a foreign nation like Canada. Platt could theoretically dismiss the case on those grounds,and the casino project could go forward unregulated. However, legal experts agree that such a decision by Platt would almost certainly be appealed by the town, state or federal government to the Second Circuit Court of Appeals. To get around the rule against suing tribes, town and state leaders could try to refile the case naming tribal leaders rather than the tribe as a whole, allowing them to proceed with the case, legal experts said. Right now, both the Shinnecock Nation and tribal leaders are named as defendants in the case.
If the trial does move forward, Platt may decide whether the tribe meets the criteria for federal recognition. While the tribe has been recognized by New York State for centuries, federal recognition is the first step toward opening a casino under the Indian Gaming Regulatory Act. To be recognized, a tribe must show it has been a continuous community from the time it first had contact with non-Indians, with a continuous government, and a criteria for determining who is a tribe member. For Platt to make such a determination, he may have to pore over reams of genealogical and historical documents, and hear from experts on both sides.
John Strong, a historian at Southampton College of Long Island University who has written extensively about the Shinnecock, said the nearly 5,500 pages of genealogical and historical records supporting the Shinnecock petition for federal recognition, and now backing up their court case, are extremely convincing. He said the process has taken decades for the Shinnecock both because the BIA has been slow to respond to their application, and because it's taken years to get permission from every tribe member to access their families' birth, death and marriage records for submission.
"I've seen much weaker petitions than theirs get federal recognition," said Strong, who has been notified by the Shinnecock that he could be a witness in the case. The Shinnecock have asked that their genealogical documents be sealed to the public because they consider them private.
To avoid barring the federal government from the case entirely, Platt recently ordered the U.S. attorney's office to take part in the case as an "involuntary plaintiff." Forcing the U.S. attorney's office into the case, Platt said in court, would prevent the federal government from objecting to his decision down the road.
"What if the government says this suit has no validity because they were never a party?," said Platt just before ordering them into the case. "That's the nightmare that I wake up to when I think about this problem."
Assistant U.S. Attorney Kevin Mulry asked Platt to put the case on hold while his office appealed that decision. However it has yet to file an appeal. Mulry declined to comment for this story.
Even with the U.S. attorney's office as a party to the case, however, some legal experts wonder whether Platt's decision will stand up.
"These are extremely aggressive and novel steps to take for a court," said Jonathan Turley, a professor at George Washington University Law School in Washington, D.C. "This court is pushing the envelope on separation of powers by bringing in the Justice Department and declaring itself authorized to make decisions on federal recognition."
Although a judge has never before granted a tribe federal recognition for the purposes of opening a casino, there has been at least one case where a federal judge ruled on a tribe's status for the purpose of a land claim. In 1977, a federal judge ruled that the Mashpee Wampanoag Indians of Massachusetts were not a tribe, in part because they had intermarried with nontribe members over the years, said Professor Daan Braveman, who teaches a course in federal Indian law at Syracuse University College of Law. That could bear some relevance to the Shinnecock; some say theyalso have intermarried with outsiders over the years. The Mashpee case was upheld on appeal, Braveman said.
Even if Platt were to grant the tribe some form of federal recognition, and his decision were upheld on appeal, "that wouldn't mean they're entitled to build a casino," Braveman said. The tribe would then have to prove that the land they want to build on is their ancestral land -- a matter the state disputes -- and they would have to enter into a compact with New York State.
If Platt were to deny the tribe federal recognition, the Shinnecock would have at least a couple of options, legal experts said. They could appeal to the Second Circuit Court of Appeals, or they could simply wait for the BIA to make a ruling on their case -- an option that could take a decade or more.
Any decision by Platt will be big news for dozens of tribes around the country, many of whom have been living in poverty for years awaiting a ruling that could wind up earning them as much as $1.2 billion a year, according to some casino proponents. Whether the case ends with a casino in the Hamptons is another question.
"I really believe that when all is said and done, the Shinnecock will not be able to open a casino," said Assemb. Fred Thiele (R-Sag Harbor), who has opposed the casino because he says it would harm his district.
Others say anything could happen.
"This is not pie in the sky at all," Eberhard, the Seattle lawyer whose firm represents several tribes nationwide, said. "This is serious business."
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