Shinnecocks Prevail

Southampton's Shinnecocks won a victory in court last Thursday, when County Court Judge John J.J. Jones Jr. determined that most, if not all, of a half-acre parcel purchased by William R. Pell 4th and his wife, Sarah Fitzsimons, belongs to the Shinnecock Reservation.

"I am hesitant to dash a person's dream," the judge said to the crowd in the Riverhead courtroom after meeting with lawyers for both sides in chambers. But according to the evidence presented, he continued, the defendants were intruding upon Native American land. He ordered a warrant of removal under Section Eight of the New York State Indian Law.

The decision was met with cheers from the 28 members of the tribe who had faithfully attended the two-week-long court proceedings.

No Boundaries Set

"We accept this decision with a sense of thanksgiving," said Marguerite Smith, a Shinnecock who was active in pursuing the case, several days after the trial. "Based on the facts . . . it confirmed our long-held beliefs. We have been here and we will always be here. This is our home."

"I'm relieved the whole thing is over," Mr. Pell said.

However, his lawyer, P. Edward Reale of Twomey, Latham, Shea & Kelley, pointed out that the decision didn't resolve the issue of "where the reservation ends." The ruling applies only to the Pell site and does not establish fixed boundaries that could be used to determine whether other property encroaches on Shinnecock land.

If the court ruling stands, the Chicago Title Insurance Company of Riverhead, which insured the property, will have to reimburse Mr. Pell for the amount he paid for the lot. The thousands of dollars spent on clearing are not covered, however.

An Appeal?

Mr. Reale was hesitant to say his client would appeal. "It depends on what's in the best interest for all parties," he said.

The court fight was the second the Shinnecocks had brought to defend their reservation. The first, in the 1950s, also was successful.

Suffolk District Attorney James M. Catterson Jr. said the issue in the case was a simple one: "Did he [Pell] have the Indian blood. If he didn't, he couldn't stay on Indian land."

The dispute centered around a half-acre piece of land on the northwest corner of the reservation, south of Old Fort Pond. The lot was part of a subdivision drawn up in 1949.

1992 Conversation

Charles Seaman purchased the property in 1991 and was granted a building permit and variance from Southampton Town to build a house and pool on the lot in 1992. Mr. Seaman testified that he never went through with the plans because "I didn't have the money to do it."

He owned the property until 1996, when he sold it to Mr. Pell for $60,000. Sometime in 1992 a conversation took place among Mr. Seaman, Kevin Eleazer, a Tribal Trustee since 1989, and Roberta Hunter, an elected member of the Shinnecock Tribal Council, regarding the work Mr. Seaman was planning. Mr. Seaman testified, "They did not say it was their land a couple years ago."

However, Mr. Eleazer testified that he had told Mr. Seaman that "where he planned to put the cesspool would be on tribal land. . . ." In court, Ms. Hunter recalled that the three parties got into Mr. Eleazer's car to go to a higher elevation on the reservation "to get a different angle."

She said that the parties had agreedto be "in touch with each other. Nothing would happen on the property."

After hearing the conflicting testimony, Mr. Pell told The Star he had known Mr. Seaman through the Pell seafood business for some time before he sold him the property. "He would have told me," Mr. Pell said, if he knew the ownership . . . was in dispute.

When Mr. Pell began clearing the lot in October, however, the work was interrupted by members of the tribe. Mr. Pell then spoke with Ms. Hunter and Peter Smith, chairman of the Tribal Trustees, and the parties agreed that no work would be performed for two weeks while a survey was done.

The Shinnecocks then contacted the County District Attorney's office, which is authorized to defend Native Americans in land disputes under New York State's Indian Law. A restraining order barring further work was issued.

A countersuit was filed on behalf of Mr. Pell for "slander of title" and for damages to compensate him for architect's and contractors' fees.

Earlier Case

The tribe was represented by Edward Bracken and Karen Petersen, assistant district attorneys, in court. Their case was based on a portion of the State Indian law used to evict trespassers from Native American land.

The same section brought the Shinnecocks success in 1954 when the Great Cove Realty Company attempted to claim ownership of nine acres on the northern side of the reservation. The case went all the way to the United States Supreme Court. It ruled in 1961 that the property was part of the Shinnecock Reservation.

The 1954 case was an important precedent in the Pell case, since it established that oral testimony as to the reservation's boundaries was legally sufficient.

Where's The Creek?

Although there is documentation of Shinnecock holdings - deeds in 1859 and 1872 were accepted by the Southampton Town Trustees and the Trustees of the Shinnecocks as defining the boundaries - the deeds describe the boundaries in relation to land features. Defining boundaries this way creates a problem because land features change over time. and therefore the oral history comes into play.

These include a ditch, the "Stephen Post Meadow," and "the meadow to Old Fort Pond where the water fence formerly stood.

Determining the location of the creek referred to in both deeds created a dilemma since it no longer exists. The 1938 hurricane, the formation of an artificial lagoon in the 1940s, bulkheading of sections of the coastline, and filling of wetlands for residential construction all have changed the topography.

"Water To Water"

Promising to "elicit evidence to prove where the creek once ran," the D.A.'s office called seven Shinnecock witnesses, who all testified they recalled a creek or wetlands in the northwestern part of the reservation. They said they had been told their land ran "water to water" by older members of the tribe.

On the other hand, Mr. Reale opened his arguments with a motion to dismiss the Indians' claim. He said an ejection action depends on the "strength of their own title, not on the weakness of the defendant's deed."

"The only thing that's ambiguous is the plaintiffs' claim. There is a clear unbroken chain of title."

Mr. Reale called a series of witnesses to demonstrate a clear chain of title, which was accepted and recorded by Suffolk County. They included John Holden of Squires, Holden, Weisenbacher and Smith, the firm that did the subdivision map in 1949, Lance Pomerantz, a title examiner, and Dr. James Colins, who surveys large land holdings for governments around the world.