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Judge Puts Shinnecock Casino Case On Hold Till April

By Michael Wright


Backing down from the ultimatums he issued last month, U.S. District Court Judge Thomas C. Platt granted attorneys for New York State and the Town of Southampton three months to complete genealogical research for their legal challenge to the Shinnecock Indian Nation's casino plans.

Just last month, Judge Platt admonished the state's and town's legal representatives for slow progress in their research and told them that the case would proceed according to his timetable, whether they were ready or not.

But at a hearing on Thursday morning, January 22, the judge acknowledged that while the two public plaintiffs in the case had made significant progress, the genealogical research related to the case will require more time to complete.

Judge Platt granted an extension of the discovery phase until April 24, citing both the need for more research and an expected appeal by federal attorneys of the judge's decision to hold the U.S. government to whatever ruling he ultimately issues—even if it includes granting the Nation status as a federally recognized tribe.

With the new three-month delay in place, the fevered pace of the case eased a bit. Still, lawyers for the two sides were scheduled to meet both this week and next to share evidence.

At the same time, the significance of the proceedings is confirmed. Judge Platt continues to reiterate his opinion that he alone can essentially decide the Shinnecock's right to operate a casino—even though such a ruling would pitch the two-decades-old federal recognition process into turmoil. Judge Platt himself noted on Thursday that certain points in the case may well have to be considered by the U.S. Supreme Court, a possibility that attorneys advising the tribe envisaged more than a year ago.

But on Thursday morning, attorneys for the plaintiffs suggested that they had won at least a minor battle in securing the extra time from a judge who had been their adversary just a month ago.

"I think the judge accomplished what he wanted to accomplish," said Michael S. Cohen, an attorney for the Garden City firm Nixon Peabody, which is representing Southampton Town in the case. "He's moving the case along."

In the cavernous courtroom on the 10th floor of the new federal court building in Islip, Judge Platt noted on Thursday that lawyers from the U.S. Attorney's Office have expressed their intention to appeal his December enjoinder of the federal government to the case. As of Wednesday, no official appeal had been filed, and calls to the U.S. Attorney's office in Central Islip were not returned.

At a December hearing, Judge Platt ruled that the federal government—namely, the Bureau of Indian Affairs—would be bound by his ultimate decision in the case. Judge Platt has suggested that he doesn't want a federal agency to slip out from under his ruling via a technicality, such as exclusion from the case, if the judge concludes that he has the power to bypass the official federal recognition process and grant the tribe sovereignty by court order.

Judge Platt noted that addressing any federal challenge will take time, which is one reason he gave the state extra time for research. But in the interest of keeping the court proceedings moving, he ordered the attorneys on both sides to meet outside of court to work out their mutual needs during the discovery phase of the trial. The judge said the move would cut back on the number of in-court motions seeking various information.

Published reports have suggested that the meetings between the attorneys this week and next might include negotiations that lead to a settlement of the case—but Mr. Cohen and a spokesman for the state both said this week that the meetings are purely targeted at evidence discovery.

Thursday's two-hour hearing was a far cry from the dressing-down Judge Platt unleashed on state Assistant Attorney General Robert A. Siegfried at the December 22 hearing. At that hearing, the judge was far less receptive to the state's pleas for more time to conduct its research.

Mr. Siegfried cited the enormity of the task of reviewing the approximately 5,500 pages of historical documents compiled by the tribe, as well as reams of documents in the vaults of Southampton Town Hall. But the judge reprimanded the state and town representatives for not having enough to show for the weeks that they had already had to conduct research at that time.

Apparently taking that scolding to heart, the plaintiffs stepped up the pace in preparation for Thursday's hearing, producing what Mr. Siegfried called "boxes upon boxes of pages" for the court's review.

"We essentially did months worth of work in a few weeks," Mr. Cohen said after the hearing.

Yet the task they face in the next few months remains formidable. As part of their challenge to the Shinnecock's claim of tribal sovereignty, and freedom from the constraints of the normal federal recognition process, Judge Platt has burdened the state itself with conducting the sort of exhaustive historical research normally handled by the federal Bureau of Indian Affairs.

Since Judge Platt announced that he would not wait, as he originally had intended, for the BIA to conduct its normal federal recognition review before issuing his ruling on the tribe's sovereignty claim, the state has begun poring over more than 400 years of Shinnecock history and tracing the lineage of some 5,000 Shinnecock Indian Nation members.

And, ironically, the judge has pointed out that this very review, despite being part of their lawsuit against the tribe, must not be conducted from an adversarial standpoint, but rather as an impartial review to confirm the tribe's understood background.

At the same time, attorneys for the tribe are urging Judge Platt to make the state concede the tribe's almost irrefutable lineage—the Shinnecocks are said to be one of the best documented Native American tribes in the country, with detailed records of families and tribal government dating back to the colonial era.

"We should be narrowing the issues in this case," argued Christopher H. Lunding, the Manhattan attorney representing the tribe. Mr. Lunding and tribal attorney George C. Stankevich have argued that few, if any, of the state's and town's challenges seem supported by evidence, and that the case could be whittled down to a very few specific legal points.

"Are they questioning whether this tribe is the same Shinnecock tribe as was here in 1776?" Mr. Lunding asked on Thursday, acknowledging that one of the keys to the federal recognition genealogical review is to investigate whether the tribe has commingled with other ethnicities to an extent that its members might not be able to trace their lineage back to Native American roots. "It's really a matter of ethnicity, not genealogy of the sort people have as a hobby these days."

In the meantime, Mr. Lunding also asked the judge to ease the temporary injunction that has prevented the tribe from continuing work on its 79-acre Westwoods site that began last summer, so that the tribe may pursue other development projects on its land in Shinnecock Hills that are not related to the casino.

"We can't do anything at all," Shinnecock Tribal Trustee Lance A. Gumbs said outside the courtroom on Thursday. He said the injunction has held up projects planned for the Shinnecock Reservation in Southampton, though he declined to describe their nature or when they were scheduled to begin.

Mr. Cohen said that if the tribe asks to be allowed to conduct "legitimate" improvement projects, the state and town likely will agree, as was the case this past summer when the tribe was permitted to remove sand from the proposed casino site for use at its annual Labor Day Weekend Powwow.

"Of course we'll say yes," Mr. Cohen said. "We're not unreasonable."

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