Shinnecock Claim May Be Too Late

Just days after filing suit in federal court against Southampton Town, the county, the state, the governor, the Long Island Rail Road, three golf courses, and two real estate developments, the Shinnecock Indian Nation has run into potential legal barriers to their claim to 3,600 acres in Shinnecock Hills and Tuckahoe.

Their suit is based on the federal Indian Non-Intercourse Act, dating back to 1790, which declares that the taking of Indian lands is illegal without the approval of Congress. Claims based on the act have been highly successful in the past two decades, but some courts appear to be taking a different view now.

In March, the United States Supreme Court raised the issue of timeliness in a case involving the Oneida tribe against the city of Sherrill, N.Y. In deciding against the tribe, the court said the proposed remedy, a property tax exemption, would be too disruptive to the community at this point.

The Oneidas had bought new land on the open market more than 100 years after their membership vacated or sold nearly all the original reservation and left the state. Since these circumstances were unusual, experts in Indian law have been waiting for another case to be decided to see if the trend would hold.

It did. On June 28, the United States Court of Appeals, Second Circuit, dismissed a $248 million district court judgment for the Cayuga Nation of New York and the Seneca-Cayuga Tribe of Oklahoma in which they staked a claim to land upstate.

The tribes said the non-intercourse act had been violated in the state's appropriation of the land. Their suit was originally filed in 1980. In a 2-to-1 decision, the appeals court cited the Sherrill decision and said that in this case, as well, the tribes had waited too long to bring the action.

Gov. George E. Pataki has attempted to settle similar suits with monetary settlements and proposals for casinos in such areas as the Catskills. In the Cayugas' case, however, the state had appealed the earlier settlement, saying it was unjustified.

Mr. Pataki said in a statement that the decision was a "tremendous victory for the property owners and taxpayers in central New York. . . ."

"We will continue to take whatever steps are necessary to protect New Yorkers - from Grand Island to Long Island - as we move forward to resolve any remaining land claims within the state," he said. The mention of Long Island appears to refer specifically to the Shinnecock case.

Beverly Jensen, a spokeswoman for the Shinnecocks, said they had no comment on the matter. "Our lawyers are looking at the decision," she said, adding, however, that the Shinnecocks were confident their case would "be judged on its own merits."

Michael Cohen, an attorney with Nixon Peabody who has been representing Southampton Town in its litigation against the Shinnecocks' proposal for a casino, said the Cayuga decision had "significant implications for the Shinnecocks' complaint," which was filed on June 15 and seeks compensation for the land in Tuckahoe and Shinnecock Hills.

A claim cannot wait 150 years, Mr. Cohen said. "If tribes sit on rights they will lose them."

The issue is not only timeliness, but how the land has been used in the interim period between its appropriation and the lawsuit, he said: "It's not like the land in Southampton is all vacant, unimproved property."

Walter Olson, a fellow at the Manhattan Institute who writes about excesses of civil litigation as well as land claim cases, called the Cayuga ruling "a bolt from the blue."

"If upheld, it turns the field upside down," he said. "It extinguishes most or all of these claims."

However, Mr. Olson said judges might still be "queasy" about offering no remedy whatsoever and out of sympathy provide some cash settlement or other award. As it stands now, "a three-judge panel with one dissenter is not necessarily an accurate prediction of what the Supreme Court will do," should a case go that far.

After following the land claim cases of New York State's upstate tribes for many years, Mr. Olson said, he believed that the Shinnecock case could prompt Congressional action to prevent such claims from coming forward in the future - perhaps with legislation reversing a 1985 Supreme Court ruling that lawsuits like the Shinnecocks' were not subject to time limits.

Jon Schneider, a spokesman for Representative Tim Bishop, said that Mr. Bishop would be willing to talk with other members of Congress to see what the chances for such a measure might be. He said Mr. Bishop believes, however, that the Cayuga decision "really changes the landscape in a major way."

Mr. Bishop continues to maintain, as well, that the Shinnecock suit is without merit, because the tribe lacks federal recognition and because the reservation boundaries are well defined by state law.

In the meantime, some East End residents have reported that a company that shows up on their caller-ID as "Central Research" with a New York City phone number has been conducting a survey asking under what circumstances they would support a casino.

Ms. Jensen said she knew of no one representing the tribe who had commissioned such a survey, and wondered aloud if an independent group had done so.

Village Petition

solved, the residents of the proposed village will have 40 days to vote on whether to go ahead with it. Mr. Brown said he was confident that the petition would be upheld.

Among those who might mount a challenge are the proponents of the village of Dunehampton whose own petition was rejected by Mr. Heaney last year. Lawyers representing Dunehampton's supporters took the matter to the State Court of Appeals, which recently declined to hear the case. They have until Aug. 1 to challenge the Sagaponack petition, and only people living within the boundaries of the Sagaponack School District can do that.

Thomas Butler, a partner in the law firm Chadbourne and Park in New York City who represents Dunehampton's supporters, said they were reviewing the Sagaponack decision and considering their options. They plan to make a statement soon, he said.

A challenge on their part would be a pre-emptive strike defending their own petition for a village with roughly the same boundaries. It was filed under the name of Southampton Beach (Mr. Heaney deemed their Dunehampton petition insufficient, so they have filed a second one).

The petition for Southampton Beach will be eligible for consideration now that Mr. Heaney has made a decision about Sagaponack's petition. However, without the beachfront that would lie within a Sagaponack village, Southampton Beach would not have the required land or population to incorporate.

Sagaponack residents were among those who challenged the original Dunehampton petition, and tried not to repeat the mistakes made there - including the names of people who had died, for instance, or who were not permanent residents. "And they still met the test," Mr. Heaney said.

The push for a Sagaponack village was at first a defensive measure against Dunehampton's attempt to carve off its coastline, but Alfred R. Kelman said the mission had now united the community "to move forward as one village."

"The insular nature of Sagaponack and our community spirit was aroused by the aggressive action to redraw historical lines," he said.

Mr. Kelman said a Sagaponack village would "continue under a similar manner. There's no mystery here." The residents would decide what their relationship would be to Southampton Town, but would not form "a runaway village" and presumably would continue to use the town's services under contract.

But those details have not yet been discussed, according to Janice Kelman, Mr. Kelman's wife, who said there would be a series of meetings to decide them.

New zoning laws could be one of the changes on the horizon, however. Mr. Kelman noted that the hamlet considered incorporation when Ira Rennert's humongous house was approved by the town, but the consensus was not there.

"Residents who did not want to separate realized the lesson" when they were unable to stop the house, and also when they saw the "snake-like map of Dunehampton." They started to come around to the idea, Mr. Kelman said.

While Sagaponack residents were guarded about the legal challenges, they could not suppress some excitement. Noting the Aug. 1 deadline for a challenge, Ana Daniel said it would be good to have the incorporation vote in August because of the higher seasonal population.

Perhaps thinking about the Dunehampton supporters who tend to be second homeowners, too, and presumably would vote against the Sagaponack incorporation, Mr. Kelman said he would prefer September.