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(Cite as: 2007 WL 3307089)
United
States District Court, E.D. New York.
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.
Nos.
03-CV-3243 (JFB)(ARL), 03-CV-3466 (JFB)(ARL).
Oct.
30, 2007.
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.
*1
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 (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. FN1
FN1.
In a Memorandum and Order, dated November 7, 2005, the
Court determined that the Shinnecock Indian Nation satisfied the federal
common law standard for determining tribal existence and, therefore, that
issue was not part of the trial.
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.
*2
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 laches 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.
*3
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 Fact and Conclusions of Law that follow,
the Court concludes that plaintiffs have demonstrated in an overwhelming
fashion that they are entitled to a permanent injunction preventing
the development of a casino at Westwoods that is not
in compliance with New York and Town laws and regulations.
I.
BACKGROUND
A.
THE CONSOLIDATED ACTIONS
The
lawsuit commenced by the Town against the Nation and its
three Trustees (03-cv-3466) (the “Town
action”),
has been consolidated with the lawsuit commenced by New York,
the Board, and the DEC against the Nation and its
Trustees, as well as the Chairman of the Shinnecock Nation
Gaming Authority (03-cv-3243) (the “State
action”).
Plaintiffs seek declaratory relief that the construction and operation of
a casino at Westwoods is illegal under both New York
and local law and, as a result of such violations
and threatened violations, seek to permanently enjoin such activities. The
Court will briefly summarize below the pleadings filed by each
of the parties.
(1)
THE STATE COMPLAINT
The
State complaint asserts five causes of action. The First Cause
of Action alleges that any attempt by the defendants to
build and operate a casino at Westwoods would violate New
York anti-gaming laws and that such gaming would not be
permitted under federal law (as set forth in IGRA) because,
among other things, the Nation has not been recognized as
a tribe by the Bureau of Indian Affairs (the “BIA”).
(State Complaint, at ¶¶
71-78.) The Second Cause of Action contends that defendants lack
a Storm Water Pollution Prevention Plan (“SWPPP”)
and a Notice of Intent (“NOI”)
pursuant to a General State Pollutant Discharge Elimination System (“SPDES”)
permit for construction and operation of a casino and, therefore,
cannot legally commence construction of the casino. (Id.,
at ¶¶
79-81.)The Third Cause of Action charges that, given the failure
to apply for and obtain an SPDES permit under New
York environmental law, defendants cannot lawfully commence construction of a
casino with a wastewater treatment facility that would discharge effluent
into New York waters. (Id.,
at ¶¶
82-84.)The Fourth Cause of Action alleges that, because defendants failed
to apply for and obtain a permit for a new
well under New York environmental laws, defendants may not commence
construction of a casino with an attendant new well having
a pumping capacity exceeding forty-five gallons per minute. (Id.,
at ¶¶
85-87.)The Fifth Cause of Action asserts that, because the necessary
environmental impact studies have not been conducted as required under
the State Environment Quality Review Act (“SEQRA”),
the DEC cannot issue the necessary permit to allow construction
and operation of a casino facility.(Id.,
at ¶¶
88-90.)The State seeks a permanent injunction and a declaratory judgment
in connection with these claims.
(2)
THE TOWN'S COMPLAINT
*4
The Town also seeks declaratory relief and a permanent injunction.
Specifically, the Town alleges that, in July 2003, defendants engaged
in site preparation activities at Westwoods in connection with their
previously-announced decision to develop a casino at that site. (Town's
Complaint, at ¶¶
12-15.) The Town contends that these construction activities were not
preceded by any application for, or the issuance of, the
requisite Town permits and approvals and, thus, such activities and
threatened activities violate the Town Code. (Id.,
at ¶
16.)The First Cause of Action alleges that defendants violated Town
Code §
330-184(I), which requires site plan approval or written permission from
the Southampton Planning Board before any “regrading,
clearing, tree removal or any other work in preparation of
future use of a site”
may take place. (Id
.,
at ¶
21.)According to the complaint, defendants did not apply or receive
site plan approval before engaging in site preparation activities at
Westwoods. (Id.,
at ¶
23.)The Second Cause of Action asserts that defendants' activities and/or
threatened activities violate Town Code §
325-6(A), which is part of the Town's wetlands protection legislation
and prohibits certain construction activities in a wetland area or
within 200 feet of wetland boundaries in the absence of
a Town-issued wetlands permit. (Id.,
at ¶¶
27-36.)In particular, it is alleged that defendants' site preparation activities
at Westwoods qualify under this provision and defendants violated it
by not obtaining the requisite permit. (Id.,
at ¶¶
31-34.)In short, the complaint alleges that “[d]efendants
have refused to acknowledge, much less comply with Chapters 325
[“Wetlands”]
and 330 [“Zoning”]
of the Town Code, and otherwise have refused to recognize
and
acknowledge the Town's authority to regulate the uses of the
lands within its borders.”(Id.,
at ¶
36.)
(3)
DEFENDANTS' DEFENSES
Defendants
make a number of admissions in their answers to the
complaints.FN2
Defendants admitted that the Tribe is not listed on the
master list of federally-recognized Indian Tribes maintained by the federal
government in the Federal Register. (Defs. Ans. to State's Complaint,
at ¶
43.) With respect to the alleged illegal gaming under New
York law, defendants admitted that the Nation owns Westwoods and
that the Nation intends “to
engage in gaming activities in a building to be constructed
on a portion of the Westwoods Parcel....”(Id.,
at ¶¶
46, 49.)Specifically, defendants admitted to a plan to construct a
gaming facility in the summer of 2003 that would have
the capacity to accommodate at least “900
to 1,000 gaming machines and 60 table games.”(Id.,
at ¶
50.)Defendants also conceded that the Nation had not received an
identification number issued by the Board or a license issued
by the Town authorizing gaming at Westwoods, as required by
New York gaming laws.(Id.,
at ¶¶
53-54.)With respect to the alleged violations of New York environmental
laws, defendants admitted that they have not submitted any of
the documents to the DEC for an environmental impact study
in order to commence construction of a gaming facility at
Westwoods under New York environmental laws, and that they also
lacked the environmental and building permits and agreements required under
Town zoning laws, Town fire code regulations, and New York
environmental laws. (Id.,
at ¶¶
58-59.)
FN2.
The admissions and defenses contained in the Answer to the
State Complaint mirror those contained in the Answer to the
Town Complaint.
*5
Although a number of defenses are raised in defendants' answers
to the complaints, their core defense is that New York
and its political subdivisions, including Southampton, lack the power under
the United States Constitution and federal common law to require
the defendants to obtain any license, permit, or other form
of approval to construct or operate a gaming facility at
Westwoods. (Defs. Answer to State's Complaint, at 13, “Third
Affirmative Defense”;
see
also
Defs. Answer to Town's Complaint, at ¶¶
8-9, “Third
Affirmative Defense.”)
II.
PROCEDURAL HISTORY
On
June 29, 2003, the State commenced the State action in
New York State Supreme Court, Suffolk County (“Suffolk
County Supreme Court”)
to stop construction activities at the Westwood site. On that
same date, the State obtained a temporary restraining order (a
“TRO”)
signed by New York State Supreme Court Justice Edward D.
Burke. On July 1, 2003, defendants removed the case to
this Court and the matter was assigned to the Honorable
Thomas C. Platt.
On
July 14, 2003, Southampton filed the Town action in Suffolk
County Supreme Court, also seeking to enjoin construction activities, based
on defendants' alleged violation of the Town's zoning and land
use laws. On that same date, New York State Supreme
Court Justice James M. Catterson granted the Town's application for
a TRO. Thereafter, on July 15, 2003, defendants removed the
action to this Court and the matter was assigned to
the Honorable Thomas C. Platt.
Shortly
after removal of the State action, the State moved for
remand. The State's motion for remand was denied by order
dated July 29, 2003. See
New
York v. Shinnecock Indian Nation,
274 F.Supp.2d 268, 271 (E.D.N.Y.2003). The Town also moved to
remand, but later agreed to withdraw its motion when the
two actions were consolidated. (See
Stipulation and Order, dated December 22, 2003.)
The
State also moved this Court for a TRO and a
preliminary injunction to halt construction of the casino. The Town
joined in the State's motion. By Memorandum and Order dated
August 29, 2003, the Court granted the preliminary injunction. See
New
York v. Shinnecock Indian Nation,
280 F.Supp.2d 1, 10 (E.D.N.Y.2003). The Court also stayed the
action for a period of eighteen months to allow the
BIA to decide the Nation's petition to the BIA for
federal recognition. (Id.)
Defendants appealed the August 29, 2003 Memorandum and Order, and
the Second Circuit remanded the case on November 18, 2003,
stating that the district court should determine whether a preliminary
injunction and stay was still warranted since the BIA could
not address the Nations' petition for recognition within the eighteen
months contemplated by the Court. See
New
York v. Shinnecock Indian Nation,
No. 03-7996, at 1-2 (2d Cir. Nov. 26, 2003). Following
the remand, on November 18, 2003, the Court conducted a
conference in the State action in which the Town participated.
At that conference, the Court lifted the stay, but continued
the preliminary injunction pending a decision at trial. The Town
action was also consolidated with the State action and the
parties were ordered to proceed with discovery. (See
Stipulation and Order, dated December 22, 2003.)
*6
The parties filed motions for summary judgment and partial summary
judgment on July 21, 2005. Defendants sought to dismiss the
Town and State complaints on the grounds that the Nation
is an Indian Tribe and is therefore entitled to tribal
sovereign immunity. Plaintiffs sought partial summary judgment permanently enjoining defendants
from operating a gaming facility, alleging that defendants lack the
right to engage in tribal gaming under IGRA or under
federal common law, and that any gaming was subject to
New York gaming and environmental laws. The Town sought partial
summary judgment on the grounds that Westwoods is not “Indian
country,”
as defined at 18 U.S.C. §
1151, and thus is subject to state and local law,
and that, in any event, the Nation no longer holds
aboriginal title to Westwoods because such title was extinguished by
sovereign act during the colonial era.
By
Memorandum and Order, dated November 7, 2005, Judge Platt denied
all motions for summary judgment and partial summary judgment, except
that he granted the defendants' motion for summary judgment on
the issue of whether the Nation is an Indian Tribe
pursuant to the federal common law standard established in Montoya
v. United States,
180 U.S. 261, 266 (1901) and Golden
Hill Paugussett Tribe of Indians v. Weicker,
39 F.3d 51, 59 (2d Cir.1994).See
New
York v. Shinnecock Indian Nation,
400 F.Supp.2d 486, 491-92 (E.D.N.Y.2005). Judge Platt held that “[t]he
cases described above, beginning with Montoya
and continuing to the present, establish a federal common law
standard for determining tribal existence that the Shinnecock Indian plainly
satisfies.”Id.
at 492.However, Judge Platt emphasized that “recognizing
the Shinnecocks as a Tribe does not end the matter.
The question remains as to what use Defendants may put
the Westwoods property....”Id.
at 493.Judge Platt also found that the recent Supreme Court
decision in Sherrill
was relevant to considering “the
extent of the impact of the ‘disruptive’
claims [of the defendants], the nature of the Indians' present
titles and possibly the length of the delay and the
question of laches, and appropriate remedies. These are factual and
legal determinations which may only be resolved at a trial.”Id.
at 496.Judge Platt noted that “a
remedy may also be disruptive in cases similar to the
one at bar, where dispossession is not at issue and
only neighboring landowners will be affected by the Indians' claims.”Id.
at 496 n. 6 (citing Sherrill,
544 U.S. at 219-20).
III.
THE TRIAL
A
bench trial commenced in this action before Judge Platt on
October 4, 2006. On November 15, 2006, after six days
of trial, the case was re-assigned to the undersigned.FN3The
bench trial resumed on December 4, 2006. On December 6,
2006, the State filed a motion for reconsideration of the
denial of their motion for partial summary judgment. The Court
denied the State's request that the trial be discontinued until
the reconsideration motion was fully briefed and decided. Instead, the
Court decided to continue with the trial and address the
legal issues raised by the motion for reconsideration at the
conclusion of the trial along with the other legal issues
in the case. The final witness testified on April 17,
2007. The parties submitted their proposed findings of fact and
conclusions of law on May 1 and May 2, 2007,
for utilization by the Court in connection with this Memorandum
and Order. Summations were heard on May 9 and May
10, 2007.
FN3.
Pursuant to Rule 63 of the Federal Rules of Civil
Procedure, when the case was re-assigned due to Judge Platt
being unable to proceed with the trial, the undersigned certified
familiarity with the record and determined that the proceedings in
the case could be completed without prejudice to the parties.
(Trial Transcript (hereinafter, “Tr.”)
855-57.) The Court also gave each party the option of
recalling any witness who had already testified before Judge Platt.
The parties agreed to recall two witnesses and consented to
the Court relying on the transcript for the testimony of
the other witnesses who had already testified.
IV.
FINDINGS OF FACTFN4
FN4.
To the extent that any Finding of Fact reflects a
legal conclusion, it shall be to that extent deemed a
Conclusion of Law, and vice-versa.
A.
THE PARTIES
*7
Plaintiff New York is a sovereign state with offices at
the Capitol, in the City and County of Albany, New
York. (Joint Pretrial Order Stipulation of Fact (hereinafter, “Stip.”)
No. 1.) FN5
Plaintiff Board is an agency established within the Executive Branch
of the government of New York, pursuant to Section 101
of the Racing, Pari-Mutuel Wagering and Breeding Law of the
State of New York, and consists of three members appointed
by the Governor of New York. (Stip. No. 2.) Plaintiff
the DEC is an agency established within the Executive Branch
of the government of New York, pursuant to New York
Environmental Conservation Law article 3. (Stip. No. 3.)
FN5.
Although this Memorandum and Order makes specific reference to certain,
but not all, of the individual factual stipulations set forth
in the Joint Pre-Trial Order, each and all of those
factual stipulations have been fully considered by the Court in
connection with the Court's decision.
Plaintiff
Southampton is a municipal corporation organized and existing under the
laws of New York, situated within Suffolk County and having
an address at 116 Hampton Road, Southampton, New York. (Stip.
No. 4.)
Defendant
Shinnecock Indian Nation was held to be a tribe of
Indians in this Court's Memorandum and Opinion dated November 7,
2005, and has offices on the Shinnecock Reservation in Southampton
(the “Shinnecock
Reservation”).
(Stip. No. 5.) The Nation has not been acknowledged to
be an Indian tribe by the BIA. (Stip. No.
9.) The Nation does not appear in the list of
“tribal
entities recognized and eligible for funding and services from the
[BIA] by virtue of their status as Indian Tribes,”
as set forth at 70 Fed.Reg. 71, 194 (Nov. 25,
2005). (Stip. No. 10.) There exists no treaty between the
Nation and the United States. (Stip No. 11.) The relationship
between the Nation and the government of New York (and
its predecessors) predates the existence of the federal government. (Stip.
No. 12.) The Nation currently occupies and is in possession
of the Shinnecock Reservation, on which some members of the
Nation reside. (Stip. No. 13.) The Shinnecock Reservation is generally
described in the first sentence of Section 1 of Chapter
46 of the New York Laws of 1859, and does
not include the property described below as Westwoods. (Stip. No.
14.)
Defendant
James W. Eleazer, Jr. was, at the time the complaints
in these consolidated actions were filed, an elected Trustee and
official of the Nation, and was sued by the State
in his official capacity only. (Stip. No. 6.) By Order
of this Court dated April 17, 2007, Mr. Eleazer was
dismissed from this action as a defendant, and Randall King
was substituted as a party defendant in the place of
Mr. Eleazer. Defendant Lance A. Gumbs was, at the time
the complaints in these consolidated actions filed, and is now
an elected Trustee and official of the Nation, and is
being sued by the State in his official capacity only.
(Stip. No. 7.) Defendant Frederick C. Bess was, at the
time the complaints in these consolidated actions were filed, chairman
of the Shinnecock Nation Casino at Westwoods Authority, and is
now an elected Trustee of the Nation, and is being
sued by the State in his official capacity only. (Stip.
No. 8.) By Stipulation and Order of this Court dated
March 21, 2007, Karen Hunter, who is currently Chairman of
the Shinnecock Nation Gaming Authority (the “Gaming
Authority”),
formerly known as the Shinnecock Nation Casino at Westwoods Authority,
was substituted as a party defendant in this action in
the place of Phillip D. Brown, V, who was the
successor to defendant Mr. Bess as Chairman of the Gaming
Authority.
B.
THE WESTWOODS PARCEL
*8
The Shinnecock Tribe owns a parcel of land, commonly known
as “Westwoods,”
which is approximately 80 acres in total area, located in
the Hampton Bays area within the boundaries of the Town.
(Stip. No. 15.) Westwoods is located approximately 85 miles east
of New York City. (Stip. No. 37.)
Westwoods
consists of three tax lots: (a) Suffolk County Tax Map,
District No. 0900, Section 186, Block No. 2, Lot No.
38 (“Parcel
A”);
(b) Suffolk County Tax Map, District No. 0900, Section 187,
Block No. 2, Lot No. 78 (“Parcel
B”);
and (c) Suffolk County Tax Map, District No. 0900, Section
207, Block No. 1, Lot No. 1 (“Parcel
C”).
(Stip. No. 16; D259,FN6
at 4; D156 a, b, c, d.) Parcel A is
property to the north of Newtown Road and south of
Great Peconic Bay; this parcel is about 41.5 acres. Parcel
B is property north of Sunrise Highway and south of
Newtown Road; this parcel is about 36.7 acres. Parcel C
is property south of Sunrise Highway and is about 2.0
acres. (D259 at 8; D264; D156d; Stip. No. 16; Tr.
3292-94.)
FN6.
Exhibit numbers preceded by the letter D (e.g.,
D259) represent exhibits introduced by defendants; exhibit numbers preceded by
the letter “T”
represent exhibits introduced by the Town; exhibit numbers preceded by
the letter “S”
represent exhibits introduced by the State.
The
Nation currently has fee simple title to Westwoods. (Stip. No.
17.) The Nation currently occupies and possesses Westwoods. (Stip. No.
18.) Westwoods is not part of any reservation established by
New York.FN7(Stip.
No. 20.) Westwoods does not appear in the records of
the BIA as Indian fee land, the title to which
is restricted against alienation in accordance with 25 U.S.C. §
177. (Stip. No. 24.) Westwoods is not currently under federal
superintendence, as that term is used in connection with land
that is a “dependent
Indian community”
for purposes of 18 U.S.C. §
1151(b). (Stip. No. 25.) Westwoods
is not a “dependent
Indian community”
within the meaning of 18 U.S.C. §
1151. (Stip. No. 26.) Westwoods was not set aside by
the federal government for the use of Indians as Indian
land, as that term is used in determining whether land
is a “dependent
Indian community”
for purposes of 18 U.S.C. §
1151(b). (Stip. No. 27.) There exists no express agreement between
the Nation and the United States regarding Westwoods. (Stip. No.
28.). There exists in the Office of the Clerk of
Suffolk County no recorded deed by the Nation, as grantor,
conveying title to all or any part of Westwoods to
anyone, nor is there a recorded deed conveying title to
all or any part of Westwoods to the Nation, as
grantee. (Stip. Nos. 29 and 30.)
FN7.
However, the above-referenced Suffolk County Tax Maps identify both Westwoods
and the Shinnecock Reservation at Shinnecock Neck as “Shinnecock
Indian Reservation.”
(D156a, b, c, d.)
There
are other areas adjacent to, or in the vicinity of,
Westwoods and the Town that are relevant to the instant
litigation: (a) Canoe Place or Niamuck (“Canoe
Place”)
is a name given to a place where Indians formerly
carried their canoes between Shinnecock Bay and the Great Peconic
Bay in what is now Southampton (Stip. No. 35); (b)
Canoe Place is located at the approximate current site of
the Shinnecock Canal in Southampton (Stip. No. 36); (c) Cold
Spring Pond is a body of water within the Town
east of Canoe Place and is located approximately two miles
east of the closest boundary of Westwoods (Stip. No. 38);
(d) Quogue is a hamlet within Southampton to the west
of Canoe Place and is located approximately 6-1/2 miles southwest
of the closest boundary of Westwoods (Stip. No. 39); and
(e) Seatuck is a place located at the southern end
of the current western border of the Town (Stip No.
46), and is located at the current border between the
Town of Brookhaven and Southampton. (Tr. 2580-81; T226.)
C.
WESTWOODS AT THE TIME OF THE FIRST EUROPEAN CONTACT
*9
The Nation was in possession of the lands in and
around Southampton when the first European settlers arrived in 1640.
See
Shinnecock
Indian Nation,
400 F.Supp.2d at 489. In fact, plaintiffs' expert agreed that
the whole Town was owned by the Shinnecocks at the
time of first European contact in 1640. (Tr. 1115-16.)
Moreover, the history of the Town contained in its own
records states that when the first settlers arrived “it
appears that the whole extent of what is now the
town of Southampton was owned by the Shinnecock tribe of
Indians, who were divided into many small bands, and were
living in villages that were without exception situated near the
different creeks or branches of the bays....”
(D3, at II-III.) Thus, at the time of first European
contact, Westwoods was possessed and owned by the Shinnecocks.
D.
THE SETTLEMENT AND FORMATION OF SOUTHAMPTON
By
a Patent granted on April 20, 1635 by the Plymouth
Company (the “Sterling
Patent”),
Lord William Alexander, the Earl of Sterling, obtained undisputed title,
in the name of the King of England, to the
lands of Long Island. (James P. Lynch, The
Shinnecock and “Westwoods”
in Southampton, New York: An Ethnohistorical Analysis,
Feb. 16, 2005(T12),FN8
at 18-20; Alexander von Gernet, On
the Authority of New York Colonial Governors to Decide on
Matters Relating to Shinnecock Lands and the Town of Southampton,
June 29, 2006(S62), at 6; T29, at 29.)
FN8.
Pursuant to stipulation by the parties, the contents of the
expert reports were deemed to have been read into the
record in lieu of direct testimony. (Joint Pretrial Order, at
30.) Each party was permitted to conduct a direct examination
of its expert witness in order to familiarize the Court
with the opinions of the expert and the witness was
then subjected to cross-examination.
James
Farrett was the duly appointed agent of the Earl of
Sterling, who was granted the right and authority to convey
lands within the Sterling Patent. (T12, at 21-22; S62,
at 6; T32, at 50-51; Tr. 2441.) By deed dated
April 17, 1640, Farrett granted free leave and liberty to
four named English colonists and their associates to possess and
improve a parcel of “eight
miles square”
of land on Long Island. (T12, at 22-23; S62, at
6; T33, at 45-47.) The deed, dated April 17, 1640,
also granted to the four named English colonists and their
associates the right to “make
purchase (in theire owne names at theire owne leisure from
any Indians that Inhabit or have lawfull right to any
of the aforesaid land) all or any pt thereof, and
thereby assure it to themselves and their heyres as theire
Inhabitance for ever.”FN9(T12,
at 22-23; S62, at 6-7; T33, at 46.).
FN9.
In this Memorandum and Order, unless otherwise noted in brackets,
the Court has maintained the original spelling and grammar contained
in these colonial era documents.
By
a confirmation document dated July 7, 1640, Farrett specified the
bounds of the aforesaid “eight
miles square”
of land that constituted the plantation that came to be
known as Southampton (the “Southampton
plantation”).
(T33, at 49-50; T12, at 23-24; S62, at 7.) In
particular, the confirmation of July 7, 1640 specified that the
westerly bounds of the “eight
miles square”
of the Southampton plantation was “the
place where the Indians drawe over their canoes out of
the north bay over to the south side of the
island,”i.e.,
Canoe Place. (T33, at 49; T12, at 23-24.) The
lands constituting the Southampton plantation as of 1640 were thus
situated exclusively to the east of Canoe Place. (T33, at
49-50; T12, at 24; Katherine A. Hermes, Rebuttal
Report to Alexander von Gernet's Report Entitled “On
the Authority of New York Colonial Governors to Decide on
Matters Relating to Shinnecock Lands and the Town of Southampton,”
Aug. 21, 2006(D91), at 5; Tr. 2441, 2175.)
*10
On December 13, 1640, certain Shinnecock Indians, including tribal leadership,
executed a deed that conveyed to English colonists all of
the Shinnecock Tribe's right, title, and interest in lands bounded
on the west by “the
place where the Indians hayle over their cannoes out of
the North bay to the south side of the Island,”i.e.,
Canoe Place, (the “1640
Deed”)
(S66, at 266-67; T12, at 31; T181, at 266-67; S62,
at 7-8.) Only lands located to the east of Canoe
Place are described in the 1640 Deed. (Stip. No. 21.)
In
or about 1644, the “Towne
of Southampton”
was accepted into the jurisdiction of the Colony of Connecticut,
under terras and provisions set forth in a document entitled
“Ye
Combynation of Southampton Wth Har[t]ford.”(T12,
at 26-27; D95; Katherine A. Hermes, Report
on the History of Land Transactions Between the Colony of
Connecticut and the Long Island Indian Tribes in the Seventeenth
Century,
June 30, 2006(D25), at 20; Tr. 2443.)
The
terms of the “Ye
Combynation of Southampton Wth Har[t]ford,”
provided, inter
alia,
that “if
[u]pon vewe of such orders as are alreddy established by
ye General Court for ye Jurisdiction of Connectecoate, there be
found any difference therin from such as are also for
ye present settled in ye Towne of Southampton, the said
Towne shal ha[v]e libertie to regulate themsel[v]es acording as may
be most sutable to their owne comforts and con[v]eniences in
their own judgment, provided those orders made by them concerne
themsel[v]es only and intrence not [u]pon ye interestes of others
or ye Generall Combination of ye [u]nited Collonies, and are
not cross to ye rule of riteousness. The like powre
is also reser[v]ed [u]nto themsel[v]es for the future, for making
of such orders as may concerne their Towne ocations.”(D95,
at 567; T12, at 27.)
By
reason of these terms and provisions, Southampton, as an already-existing
town, had the most liberal association with the Colony of
Connecticut of all the towns and plantations under that colony's
jurisdiction. (T12, at 27.) Defendants' expert witness, Katherine A. Hermes,
testified that “ordinarily,
when Connecticut founded towns, they were founded from scratch,”
but Southampton existed as a town prior to its combination
with Connecticut and was permitted to keep the laws it
had enacted prior to the combination so long as those
laws were not in conflict with the interests of others
or the laws of the United Colonies.FN10(Tr.
2456; D91, at 5.)
FN10.
Although Professor Hermes testified about the concept of “personal
jurisdiction”
in the Colony of Connecticut, there is no order or
law that provides that the Colony of Connecticut retained jurisdiction
over its inhabitants regardless of where those inhabitants might travel.
(Tr. 2593-94.)
In
1650, the Connecticut General Court enacted an order that makes
reference to an earlier order that prohibited individuals from buying
any land from Indians, either directly or indirectly, under any
pretense whatsoever (the “1650
Order”).
(D46.) The 1650 Order remained the law of the Colony
of Connecticut until 1663, when the Connecticut General Court enacted
an order that replaced it. That successor order prohibited purchases
of Indian land by individuals, except with allowance of the
General Court. (D100; D25, at 20-21; Tr. 2453.) New England
colonies other than Connecticut had similar laws and these laws
were very widely published and understood. (D25, at 3.)
E.
THE OGDEN AND TOPPING TRANSACTIONS INVOLVING WESTWOODS
*11
As set forth below, in the 17th century, there were
two transactions in which the Nation sold lands west of
Canoe Place, including Westwoods, to non-Indians and the Town subsequently
acquired those lands.
(1)
THE OGDEN PURCHASE
As
of May l2,1659, the western boundary of Southampton was Canoe
Place. (T12, at 24; T33, at 49-50; T181, at 266-67;
D91, at 5.) On May 12, 1659, Sachem (Chief) Wyandanch
and his son, on behalf of the Shinnecocks, conveyed the
lands west of Canoe Place [west to Peaconock], to John
Ogden, by an instrument that is referenced herein as the
“Ogden
Deed.”
This acquisition by Ogden became known as the “Quogue
Purchase”
or the “Ogden
Purchase.”
(T50, at 162; T12, at 37; Tr. 872-76, 1067.)
At
the time of the Quogue Purchase, Ogden was a Southampton
proprietor who was also a magistrate to the Connecticut General
Court. (T12, at 37; T59, at 70-71; Tr. 2557; D25,
at 24; D136, at 314; D137, at 334.) Moreover, at
that time, Sachem Wyandanch possessed political authority over the Shinnecocks,
including authority to convey the lands west of Canoe Place
to Ogden. (T12, at 33-36; Tr. 889-93, 895-896; T45, at
198; T46; T47, at 295; T49; S62, at 8 &
n. 9.) For example, on May 15, 1657, approximately two
years before the Quogue Purchase, the Connecticut Colony General Court
acknowledged that the Shinnecocks recognized the “Montacutt
Sachem”
(i.e.,
Sachem Wyandanch) as their Sachem.FN11
(T47, at 295; Tr. 2541.)
FN11.
On September 19, 1666, Thomas Halsey, a Southampton proprietor, (T181,
at 266), reported that during a “time
of the trouble in this towne of Southampton by reason
of murder committed by the Indians,”
he witnessed Shinnecock Sachem Mandush cut up a turf of
ground in Southampton and deliver it to Sachem Wyandanch, that
he also saw Sachem Mandush and other Shinnecocks stroking Sachem
Wyandanch on the back, and that since that time, Sachem
Wyandanch “hath
acted upon ye aforesaid Interest given to him as by
letting and disposing of land at Quaquanantuck and else where....”
(T46, at 158.) On September 19, 1666, Thomas Saire (Sayre),
a Southampton proprietor, (T181, at 266), reported that he had
witnessed all that was reported by Halsey, except for the
delivery of turf by Sachem Mandush to Sachem Wyandanch, and
also attested that “when
Mandush gave up his right to Wyandanch and stroaked him
on the back, Mandush alsoe told Wyandanch that now hee
would bee all one dogge.”(T46,
at 158.)
The
lands west of Canoe Place, conveyed by Sachem Wyandanch and
his son to Ogden on May 12, 1659, were not
part of the Colony of Connecticut at the time of
that conveyance, as they were outside the territorial limits of
Southampton. (T50, at 162; T12, at 24, 26, 32; T33,
at 49-50; T34; D91, at 5; D95.) The lands conveyed
by Sachem Wyandanch and his son to Ogden included Westwoods.
(T12, at 37; D25, at 2, 24; T50, at 162;
Tr. 876, 2474.) There is nothing in the historical record
reflecting or suggesting that at any time prior to this
litigation, the Shinnecock Tribe in any way disputed or contested
Sachem Wyandanch's authority to act on their behalf FN12
(Tr. 896.)
FN12.
In its 1978 Memo (discussed infra
), the Shinnecock Indian Nation referenced that the Ogden Deed
was from “Shinnecock
sachem Wiandance”
without questioning Sachem Wyandanch's authority over the Shinnecocks. (T229, at
page “I”
of “Index
to Appendices.”)
Prior to this litigation, the Shinnecock Tribe has never challenged
or contested the validity of the conveyance by Sachem Wyandanch
and his son, i.e.,
the Quogue Purchase, to Ogden. (Tr. 896, 2544.)
Sachem
Wyandanch died in 1659. (S69, at 57; S62, at 9
n. 13.) By an order dated June 7, 1665, the
Court of Sessions in Southold directed that the annual sum
of twenty-five shillings per year, which was to be paid
to “ye
late Sachem Wyandance,”
pursuant to the terms of the Ogden Deed, (T50), should
be made to the “sunk
squaw daughter & heire to the said sachem.”(T56,
at 171; T57; T12, at 38.) Thus, one can infer
from the order of June 7, 1665 that the Court
of Sessions considered the Ogden Deed a valid, lawful, and
effective instrument. FN13
FN13.
It appears from the historical record that the conveyance to
Ogden of lands west of Canoe Place was made in
part payment of a fine imposed on the Shinnecocks by
Connecticut Colony prior to September 8, 1657, by reason of
the participation by certain Shinnecocks in an incident of arson.
(T12, at 37-38; T52, at 231; T53; T54, at 180;
T56; T57; T58, at 166-67; D183, at 62; Tr. 877-81,
883-85, 888.) This conclusion is supported by a number of
evidentiary sources, including the following: (1) by an order issued
by the Connecticut General Court on May 20, 1658, Ogden
was one of four magistrates authorized and appointed to collect
and distribute the proceeds of the arson fine imposed previously
on the Shinnecocks (D57; Katherine A. Hermes, Rebuttal
Report Responding to ‘The
Shinnecock and ‘Westwoods'
in Southampton New York: An Ethnohistorical Analysis,’
by James P. Lynch and ‘Supplement
to ‘The
Shinnecock and ‘Westwoods'
in Southampton, New York: An Ethnohistorical Analysis,
Aug. 21, 2006 (Revised for typographical corrections Sept. 28, 2006)
(D32), at 22); (2) according to The
History and Archaeology of the Montauk Indians,
published in 1979 by the Suffolk County Archaeological Association, “[t]he
land [of the Quogue Purchase] was sold in part payment
of the fire money owed by Shinnecock Indians. Wyandanch had
assumed the debt of 400 pounds and was paying in
land-Shinnecock land for a Shinnecock debt.”
(T51, at 65; T12, at 37); and (3) in his
treatise entitled The
Algonquian Peoples of Long Island From Earliest Times to 1700,
historian John Strong notes that “[John]
Ogden had apparently purchased the debt from the Southampton officials
who were unsuccessful in forcing payment from the Shinnecocks”
prior to the Quogue Purchase. (T52, at 231.)
Sometime
between May 12, 1659 and February 2, 1663, Ogden sold
the lands of the Quogue Purchase to John Scott. (T12,
at 38; T53; S62, at 9 & n.ll; Tr. 2472.)
On February 2, 1663, Scott sold the lands of the
Quogue Purchase to the proprietors of Southampton.FN14(T53,
at 175-76; T66 at p. 54; S67, at 175-77; T12,
at 38-39; S62, at 9; Tr. 2472.) Upon the sale
of the lands of the Quogue Purchase by Scott to
the proprietors of Southampton, Ogden confirmed in writing that “Wyandanch
delivered unto him quiet seizen and possession of [those] lands
...
all the lands above recited in part of pay of
the four hundred pounds the Shinecock Indians stood indebted, and
the said Wyandanck bound for the said Indians.”FN15(T53,
at 176; T12, at 38.)
FN14.
References to “Quaganantick”
in the May 1663 records of the Connecticut General Court
suggest that Connecticut knew of Southampton's interest in lands west
of Canoe Place. (D100, at 402; Tr. 2568-70.)
FN15.
During the trial of the 1667 Action in which Southampton
sued Southold to, inter
alia,
confirm its title to certain lands west of Canoe Place
and west of Westwoods (discussed infra
), Ogden testified under oath, and once again confirmed how
“hee
came seized of the Land in question, that it was
about the firemoney the Shinnacock Indyans being to pay a
Certaine sume of money for the Mischiefe done by them.
The Montauks Sachem being bound for them tooke the Land
in question into hi[s] possession, and upon some Consideracion made
it over to Mr. Ogdon, and Mr. Ogdon saith all
his Right is conveyed to Southton,”i.e.,
Southampton. (D183, at 62.)
(2)
THE TOPPING PURCHASE
*12
As of April 10, 1662, the western boundary of the
Town was Canoe Place. (T12, at 24, 39-40; T58, at
167-68; D91, at 5.) On April 10, 1662, Sachem Wyandanch's
political successor, Weany Sunk Squaw, and others, on behalf of
the Shinnecocks, sold and conveyed lands west of Canoe Place
to Thomas Topping. This transaction has become known as the
“Topping
Purchase.”
FN16(T191;
T12, at 39-41; Tr. 896-98; T58, at l67-68; S62, at
9.) At the time of the Topping Purchase, Topping was
a Southampton proprietor who was also a magistrate to the
Connecticut General Court. (T12, at 39; T59, at 70-71; Tr.
2558; D25, at 24.)
FN16.
In its 1978 Memo (discussed infra
), the Shinnecock Indian Nation described the Topping Deed as
being from “Weany
Sunk squaw, female Shinnecock sachem.”(T229,
at page “i”
of “Index
to Appendices.”)
The
lands of the Topping Purchase were situated west of Canoe
Place, and included the lands of the Quogue Purchase, including
Westwoods. (T12, at 39-40; Tr. 899; T58, at 167-68; T191;
D25, at 24-25; Tr. 2474.) The lands that were the
subject of the Topping Purchase were not part of the
Colony of Connecticut at the time of the Topping Purchase
because they were situated outside the then-territorial limits of Southampton.
(T12, at 24, 26, 32, 41; T33, at 49-50; T34,
at 31; T58, at 167-68; T61; James P. Lynch, Supplement
to The Shinnecock and “Westwoods”
in Southampton, New York: An Ethnohistorical Analysis,
June 29, 2005(T13), at 12; D91, at 5; D95.) The
western boundary of the lands identified in the Topping Purchase
was “Seatuck,”
which is the modern-day border between Southampton and Brookhaven. (T12,
at 39; Tr. 897-98; T58, at 168; T61; T191; Stip.
No. 46.) The Topping Deed recited that the consideration for
the Topping Purchase was “four
score fathoms of wampum, or other pay, equivelent.”(T58,
at 168; Tr. 899, 2183-84.)
By
this purchase, Topping acquired the same rights to land west
of Canoe Place that were included in the Ogden Purchase.
(T12, at 41; S62, at 10; D91, at 7.) Whatever
the reason for these overlapping deeds (which both included Westwoods),
there is no question that these lands were sold by
the Shinnecock Tribe and subsequent determinations by governors, discussed infra,
confirmed such sale when issues arose related to these lands.FN17
FN17.
Plaintiffs made a number of challenges to the validity of
the Ogden and Topping transactions during the trial. Although some
of those challenges involve disputes over historical facts (such as
whether Sachem Wyandanch had authority to act on behalf of
the Shinnecock Tribe), the Court has addressed these issues in
the Conclusions of Law, rather than the Findings of Fact,
for purposes of organizational convenience.
F.
COLONIAL ERA DOCUMENTS AND EVENTS FOLLOWING THE OGDEN/TOPPING TRANSACTIONS
Following
the Ogden and Topping transactions, there were several occasions in
the 17th century during which issues relating to those lands
were brought to the attention of the Governor of the
Province of New York and, in one instance, a court.
As set forth below, on each of these subsequent occasions,
the prior sale of such land to Southampton was confirmed.
(1)
THE NICOLLS DETERMINATION
In
a document dated September 17, 1666, several Shinnecocks recorded their
“protest”
over the 1662 sale of lands west of Canoe Place
by Weany (Sunk Squaw) and other Shinnecocks to Captain Topping,
claiming that they were “the
true proprietors of the said lands.”(T61;
Tr. 2180-83.) In the 1666 protest document, the Shinnecock signatories
sought to have Governor Richard Nicolls (whom they expressly acknowledge
to be the “hon
(bbl) & discreet Governor of this Island”)
determine that they were the “true
proprietors”
of the lands of the Topping Purchase, and that they
should receive payment from the Southampton proprietors, for their conveyance,
if so directed by Governor Nicolls.FN18
(T61; Tr. 2180-83.)
FN18.
This dispute also was recounted in the Town's records. Specifically,
in the Introduction to the First Book of Records of
the Town of Southampton, William S. Pelletreau, Southampton Town Clerk,
wrote that the land within the bounds of the Town
“was
honorably purchased of its aboriginal owners”
by the white settlers. (D3, at III.) Subsequently, in the
Introduction to the Third Book of Records of the Town
of Southampton, Pelletreau refers to the “settling
of the western part of the town,”
and states, “[a]s
has been stated in a former volume, that portion west
of Canoe Place was purchased from its Aboriginal owners in
1666, and the controversy between the Town and Capt. Thomas
Topping was decided by a reference to Richard Nicol, Governor
of the Province.”(D153,
at II.)
*13
Notwithstanding its use of the word “protest,”
the September 17, 1666 document declares the intention of its
Shinnecock signatories to “impart
and assigne all our said Interest in ye said lands
[of the Topping Purchase] ...
unto our ancient and loving ffriends the Townes men of
Southampton to them and their successors for ever.”(T61;
Tr. 2182.) Thus, by the protest document, the Shinnecock signatories
were not seeking to unwind, invalidate, or reverse the conveyance
of land to Topping, or to obtain the lands of
the Topping Purchase for themselves, but instead were merely seeking
to be paid, i.e.,
to receive the “four
score fathom of wampum”
recited as consideration in the Topping Deed. (T61; Tr. 2182-84.)
Subsequent
to the September 17, 1666 protest document, and on October
3, 1666, Governor Nicolls issued a determination (the “Nicolls
Determination”),
in which he concluded and determined a “difference”
between the “town
of Southampton”
and “Capt
Thomas Topping.”
(T66, at 54-56; Tr. 2177-79.) In his determination, Governor Nicolls
noted that he had reviewed several deeds, including the deed
from “some
of Shinecock Indians to Capt Topping,”i.e.,
the Topping Deed, and the deed from “John
Scott to Southampton men,”
i.e.,
the 1663 deed conveying the lands of the Quogue Purchase
to Southampton. (T66, at 54; Tr. 2185-86; S62, at 10.)
In the Nicolls Determination, Governor Nicolls determined, inter
alia,
that “all
the right and interest that ye said Capt Thomas Topping”
had by virtue of the Topping Deed “is
belonging, doth and shall belong unto the town of Southampton
...
and their successors forever,”
(T66, at 54.)
By
virtue of this language, Governor Nicolls determined that Southampton was
the rightful owner of the lands of the Topping Purchase.
(T66, at 54; T12, at 47-49; T13, at 13-15; S62,
at 10-11.) In fact, in the Nicolls Determination, Governor Nicolls
promised to defend the Town in its “peaceable
enjoyment”
of the lands of the Topping Purchase “[a]gainst
all other claims whatsoever.”(T66,
at 55; T12, at 47-49; T13, at 13-15; Tr. 2564.)
Westwoods
is located within the boundaries of the lands that were
the subject of the Nicolls Determination. (Stip. No. 62.) At
the time he issued the Nicolls Determination, Governor Nicolls was
the prevailing sovereign authority within the Province of New York,
which included Long Island. (T12, at 45-49; T13, at 13;
T62; Tr. 1203-04, 2561, 2189-90; S62, at 19-25.) Governor Nicolls
had been appointed the first English governor of the Province
of New York on April 2, 1664, by virtue of
a commission from the Duke of York. (S72; S62, at
19; Tr. 2189-90.) In the Nicolls Determination, Governor Nicolls ordered,
inter
alia,
Southampton to pay to the “Indians
(concerned to receive it)”
the sum of “four
score fathoms of wampum,”
which was precisely the same amount specified in the Topping
Deed as consideration to be paid to the Shinnecocks for
the lands of the Topping Purchase. (T66, at 55; T58,
at 168; S62, at 10-11; Tr. 901, 2183-84.)
*14
The Nicolls Determination does not explicitly or implicitly contest, challenge,
or question in any way, the validity, legality, or effectiveness
of either the Topping Deed or the deed from Scott
to the Town, for the lands of the Quogue Purchase.FN19(T66;
T13, at 14; Tr. 2192-93, 2560.) Governor Nicolls possessed law-making
authority to promulgate the Duke's Laws and he could settle
disputes. (T12, at 45-46; S62, at 19-25; Tr. 2189-91; D91,
at 11-12.) Governor Nicolls, under the Duke of York's proprietorship,
also had the authority to address the question of Indian
land purchases. (S62, at 20-24.) There is nothing in the
historical record to suggest that the Shinnecock Tribe has ever
challenged, in any way, the validity, legality, or effectiveness of
the Nicolls Determination. (Tr. 908.)
FN19.
The Nicolls Determination was made by Governor Nicolls more than
18 months after the date of a letter to Governor
Nicolls from Connecticut Colony Secretary John Allyn (the “Allyn
Letter”),
advising that “by
the established order of this [Connecticut] Colony ...
no land was to be purchased to the perticuler use
of any person, without the consent of or Generall Courte,
and all such purchases to be null in lawe.”(D71;
T66; Tr. 1200-04, 2194-95.) Thus, at the time of the
Nicolls Determination, Governor Nicolls, by virtue of the Allyn Letter,
was aware of the existence of a Connecticut General Court
order pertaining to the purchase of lands from Indians. (Tr.
2193-95; D25, at 26; D91, at 11-12.) The Allyn Letter
does not specify the date or any other identifying feature
of the “established
order of this Colony”
to which it makes reference, but Professor Hermes testified that
the Allyn letter could only have been referring to either
the 1650 or 1663 orders of Connecticut Colony. (D71; Tr.
2553.) Professor Hermes also acknowledged that the Allyn Letter was
written at a time when Long Island was no longer
under the jurisdiction of Connecticut Colony. (D25, at 25-26; Tr.
2552.)
Subsequent
to, and as explicitly directed by the Nicolls Determination, by
a written instrument dated November 6, 1667, Topping assigned and
delivered to Southampton the Topping Deed, and all his right,
title, and interest in the lands of the Topping Purchase,
i.e.,
the lands from Canoe Place to Seatuck, including Westwoods. (T197;
T13, at 15; Tr. 901-02; 2564-65.) Subsequent to the Nicolls
Determination, and on February 22, 1667 (N.S.FN20),
several Shinnecock Indians, including Weany Sunk Squaw, Accobacco, and others,
confirmed and acknowledged (i) their April 10, 1662 sale of
lands to Topping; (ii) that Topping had sold those lands
to Southampton; (iii) that Governor Nicolls had ordered the Town
to pay “fourscore
fathom of wampum”;
and (iv) that they had received such payment from the
Town. (S70; S70A; S62, at 12; D91, at 10; Tr.
902-05, 2198-99.) The Shinnecock signatories of the February 22, 1667
(N.S.) document confirmed also that they were “fully
contented with the bargaine origeinally made with Capt. Topping.”
(S70; S70A; S62, at 12; T13, at 16; Tr. 902-03,
905, 2198-99; 2565-56.) The document ended by stating that “wee
will defend the s'd Southton men in the possession and
enjoyment of the premisses from the clayms of any other.”(S70;
S70a.)
FN20.
Until 1752, when the Gregorian calendar still used today was
adopted, England and its colonies followed the Julian calendar, under
which March 25 was the beginning of the new year.
(D32, at 28 .) In this Memorandum and Order, “N.S.”
indicates that the date is expressed using the modern, Gregorian
calendar (rather than the date expressed in the original document).
(2)
THE 1667 ACTION COMMENCED BY SOUTHAMPTON AGAINST SOUTHOLD
In
1667, a trial was conducted in the Court of Assizes
for the Colony of New York (the “Court
of Assizes”)
in an action commenced by the inhabitants of Southampton against
the inhabitants of Southold (the “1667
Action”).
(D183, at 59; Stip. No. 64.) The 1667 Action concerned
Southampton's contention that it was the owner of lands known
as Aquebauke Meadows, and Southampton's claim that Southold had trespassed
on such lands. (D183, at 59; Tr. 906, 2574-75.) The
Aquebauke Meadows were situated to the west of Westwoods, within
the lands of the Topping Purchase. (Stip. Nos. 62, 65;
Tr. 2576.) During the trial of the 1667 Action, and
in order to prove its claim of ownership of the
Aquebauke Meadows, Southampton produced the Topping Deed, and stated that
the Topping Deed had been assigned to the Town. (D183,
at 60; Tr. 906-07; 2576.) Southampton also introduced the Nicolls
Determination, and contended that Governor Nicolls “had
put a decision to this matter already, when it was
before him upon Complaint of the Towne against Captain Tapping.”(D183,
at 61; T12, at 49; Tr. 907-08, 2576-77.)
*15
The jury in the 1667 Action rendered a unanimous verdict
in favor of plaintiff Southampton, and Southampton's title to the
Aquebauke Meadows was thereby confirmed. (D183, at 62; Tr. 908.)
The jury's verdict in the 1667 Action confirmed the validity,
legality, and effectiveness of the Topping Deed, and its subsequent
assignment to Southampton, as well as the Town's ownership of
all lands included within the Topping Purchase, including the Aquebauke
Meadows and Westwoods.
(3)
THE 1676 ANDROS PATENT
On
July 1, 1674, Major Edmund Andros was appointed governor of
the Province
of New York by a commission from the Duke of
York. (S62, at 25.) On November 1, 1676, New York
Colonial Governor Edmund Andros issued a Patent (the “Andros
Patent”)
to the proprietors of Southampton. (T188, at 279-80; T12, at
49-50; S62, at 14; Tr. 2202-03.) Among other things, the
Andros Patent confirmed the existence of “a
certaine Towne ...
commonly called and knowne by the name of South Hampton.”(D188,
at 279.) The Andros Patent confirmed that the “certaine
Tract of Land, thereunto belonging”
to Southampton extended from Seatuck on the west to Wainscott
(the border between Southampton and East Hampton) on the east,
which are basically the east and west boundaries of the
Southampton as they are known today. (T188, at 279; T12,
at 49-50; S62, at 14; Tr. 908-11.) The western boundary
of the tract of land belonging to the Town, as
specified by the Andros Patent, is identical to the western
boundary of the lands specified in the Topping Deed, i.e.,
“Seatuck.”
(T188, at 279; T58, at 167-68; T12, at 50 n.
12; Tr. 2204, 2208-10, 2580-81.) Westwoods is located within the
boundaries of the “certaine
Tract of Land”
described in the Andros Patent. (Stip. No. 77; Tr.
2506-07.)
In
his Patent, Governor Andros declared that he does “Ratifie
Confirme and grant, unto [list of individuals] ...
as Patentees for and on the behalfe of themselves and
their Associates the ffreeholders and Inhabitants of the said Towne,
their Heires, Successors and Assignes, All the aforementioned Tract of
Land ...
and of every part and parcel thereof, to the said
Patentees and their Associates, their Heires Successors and Assignes ...
for ever....”
(T188, at 279-80.) The Andros Patent also provided that “if
it shall so happen that any part or parcell of
the Lande within the bounds and Limits afore described be
not already Purchased of the Indyans It may bee purchased
(as occasion) according to Law....”
(T188, at 280.) During the colonial era, New York governors
frequently exercised their authority to decide on the validity of
purchases from Indians and to impose settlements. (S62, at 27.)
There is no historical evidence that the Shinnecock Tribe or
any of its members ever challenged or contested, in any
way, the validity, legality, or effectiveness of the 1676 Andros
Patent. (Tr. 911.) The Colony of Connecticut had no jurisdiction
over the Province of New York at the time the
Andros Patent was issued. (Tr. 1205.)
*16
Accordingly, the 1676 Andros Patent, especially when considered in the
context of the prior transactions and documents involving Westwoods, confirmed
Southampton's ownership of all lands west of Canoe Place, including
Westwoods.
(4)
THE 1686 DONGAN PATENT
In
January of 1683, Colonel Thomas Dongan received from the Duke
of York instructions and a commission constituting him the Governor
of the Province of New York. (S62, at 28.) In
1686, Governor Dongan received a new commission and instructions directly
from the King of England, which granted him certain powers
and authority. (S72, at xvii, 177-78; S62, at 28-29; S74.)
Governor Dongan was granted full power and authority “to
make, constitute and ordain Laws, Statutes and Ordinances for the
publick peace, welfare & good Government of our said Province
and of the people and inhabitants thereof.”(S72,
at xvii; S62, at 28-29; S74.)
On
December 6, 1686, Governor Dongan issued a Patent (the “Dongan
Patent”)
to the proprietors of Southampton. (T69; S62, at 15-18; T12,
at 50-51.) The term “ffreeholders,”
as used in the Dongan Patent, described individuals who were
the proprietors of Southampton. (Tr.2294.) There is nothing in the
Dongan Patent (relating to Southampton's title) that is inconsistent with
the scope of Governor Dongan's authority, as set forth in
his 1686 commission and instructions from the king. (S62, at
29.) The Dongan Patent, inter
alia,
confirmed and reiterated the provisions of the Andros Patent, including
its description of the “certaine
tract of Land”
belonging to Southampton, running from Wainscott on the east to
Seatuck on the west. (T69, at 385; T188; Tr. 911-12,
2213-14, 2588-89; T12, at 50-51.)
The
Dongan Patent recited that it was issued in response to
an application submitted by Major John Howell, a freeholder of
Southampton, and one of the patentees under the Andros Patent,
to “confirm
unto ye ffreeholders of said Towne in a more full
& ample manner all the aboverecited tracts and parcells of
land within the limitts and bounds aforesaid and finally determine
the difference between the [I]ndyans and the ffreeholders of the
said towne of Southampton.”(T69,
at 387; Stip. No. 72.) The Dongan Patent recited that
Governor Dongan had “examined
the matter in variance between the ffreeholders of the said
Towne of Southampton and the [I]ndyans and do finde that
the ffreeholders of the Towne of Southampton aforesaid have lawfully
purchased the lands within the Limitts and bounds aforesaid of
the [I]ndyans and have payd them therefore according to agreement
so that all the [I]ndyan right by virtue of said
purchase is invested into the ffreeholders of the Towne of
Southampton aforesaid ....“
(T69, at 387-88; T12, at 50; S62, at 15-16; Tr.
911-13, 2218-19.) The “lands
within the Limitts and bounds aforesaid”
referenced in the Dongan Patent are stated explicitly to be
the lands of Southampton, from Wainscott on the east to
Seatuck on the west.FN21(T69,
at 385, 387; S62, at 17; Tr. 2217.)
FN21.
Although Professor Hermes stated that because the Dongan Patent was
issued 12 days after the confirmation of the 1640 Indian
deed it can reasonably be inferred that the dispute involved
lands east of Canoe Place, (Tr. 2590), the Court rejects
that speculative conclusion and, instead, relies upon the above-referenced description
of the land contained in the Dongan Patent that contradicts
Professor Hermes's conclusion.
*17
As was the common practice at the time, the Dongan
Patent was recorded in the Secretary's Office for the Province
of New York and perused by the Attorney General, who
found “Nothing
Contained therein prejudiciall to his Majys Interest.”(S62,
at 29; S65 at 394.) The Dongan Patent created and
established a body “Corporate
and Politique,”
known as the “Trustees
of the ffreeholders and commonalty of the Towne of Southampton”
(the “Southampton
Trustees”),
which was made up of the freeholders and inhabitants of
Southampton. (T69, at 388.) There is no historical evidence that
the Shinnecock Tribe or any of its members ever challenged
or contested, in any way, the validity, legality, or effectiveness
of the Dongan Patent. (Tr. 913.)
Accordingly,
the 1686 Dongan Patent confirmed Southampton's ownership in all lands
west of Canoe Place, including Westwoods.
(5)
THE 1676 ORDER OF THE COURT OF ASSIZES
On
October 5, 1676, the Court of Assizes noted that the
Town of Southold (“Southold”)
and Southampton had not yet complied with the Law of
1664 and prior orders concerning the taking out of “Grants,
Patents or Confirmations for their Towns or Lande.”(D77,
at 723-24.) By Judgment of the Court of Assizes, dated
October 5, 1676, the Court held that Southold and Southampton
“have
forfeited all their titles, Rights & priviledges to the lands
in the sd Townshipps & if they doe not by
Monday fortnight next (being the 23rd day of this instant
month) send up the acknowledgmt of their past Default &
Resolves & Desire to obey & fulfill the Law &
the severall orders of the Cort of Assizes, for the
taking out their Grants, Patents or Confirmations, as directed by
Law, Then Execution to issue out by Authority of this
Crt for the above forfeiture to the use of his
Maty without further delay”
(the “1676
Judgment”)
(D77, at 724.) The Town complied with the 1676 Judgment,
as well as the Law of 1664 and prior orders
of the Court of Assizes referenced therein, by October 23,
1676, the deadline set by the 1676 Judgment. (D7 |