The Shinnecock Indian Nation has found itself on the defensive once again over its electronic billboards on Sunrise Highway, which have been operating since 2019 and continued to do so this week despite a court ruling demanding they go dark.
The Dec. 4 ruling by New York State’s Appellate Division, Second Judicial Department, reversed a 2020 rejection by the State Supreme Court of the state’s request for a preliminary injunction against the monuments, as the tribe calls them. They display billboard-style advertising as a significant revenue source for the Shinnecock Indian Nation, where over 61 percent of families are living below the poverty line, court records state.
The appellate panel last week said the preliminary injunction should have been granted at that time because “the structures posed an unacceptable danger to public safety” as an “ongoing public nuisance” on each side of the highway.
But tribal officials aren’t backing down.
Lance Gumbs, the Shinnecock Indian Nation’s vice chairman, said in an interview Monday that they are appealing the decision up to the state’s highest court, the Court of Appeals.
“The descriptions of our land” in the Dec. 4 court ruling “are just utterly ridiculous in terms of ownership and status of our land, which has been established by New York State,” Mr. Gumbs said.
The 60-foot-tall electronic monuments, or “structures,” as the court refers to them, sit on each side of Sunrise Highway on land that the tribe maintains is its Westwoods property — land it owns and controls, though not officially part of the tribal reservation farther east.
The state claims that “a permanent easement” for the purpose of highway construction was established in 1959, giving control of 3.62 acres of the Westwoods land to the state. The Department of Transportation filed suit in 2019 against individual tribal council members to support its stop-work orders and cease-and-desist letters against the Shinnecock monuments, which it said are within the state’s easement and lacked work permits.
According to the Dec. 4 decision, New York State “alleged that the subject property is not aboriginal or sovereign land of the Nation, the Nation owns the subject property in fee simple [outright], and the subject property is not part of the Reservation nor held in trust by the federal government. Thus, according to the plaintiffs, the trustee defendants have engaged in conduct ‘beyond reservation boundaries,’ and they are subject to generally applicable state laws.”
In defending itself in the monument case, the tribe has called that easement into question. Mr. Gumbs called it “false” — a way for the state to circumvent its inability to condemn the tribe’s land to make way for the highway. “They knew it was Indian land, so they just couldn’t condemn it and take it like they did to the east and west of us.”
But back when the state sought the easement, according to Mr. Gumbs, they went through a man named Charles Smith who lived in Babylon, instead of the trustee named Charles Smith who lived on Shinnecock territory.
“They’ve known since 1859 at minimum that our tribal offices have been right here on Shinnecock territory,” Mr. Gumbs said. “Right out of the box, the easement is suspect from that standpoint.”
Furthermore, Mr. Gumbs said, the colonists’ longstanding agreement with the Shinnecock Tribal Council was that it would take at least two of the three trustees to agree to any land-use matters, but New York State engaged only Mr. Smith, and potentially the wrong Mr. Smith, in seeking the highway easement.
“That calls into question land deeds today,” Mr. Gumbs said. “You can’t just go and pick at us and say we gave up our land. We never gave up any land — that’s a false and misleading statement that is just a way for folks to justify the taking of lands.”
The 51-page opinion from the Appellate Court, Second Division, cited several previous cases involving Native American tribes in other jurisdictions. (Among them was a case establishing that individual members of tribal councils could be sued in situations where the tribe as a whole could not, which is why the Shinnecock trustees are named in this case.)
The court also used precedent to dismiss the state’s attempt to collect “monetary damages, penalties, and interest” against the Shinnecock trustees. The court declined to dismiss the case altogether, however, saying that it “purportedly only seeks relief to remedy past wrongs” rather than address the specific issue of the electronic monuments. It did not consider the current conflict as “sufficiently analogous to an alleged wrongful taking” of property.
“We therefore conclude that under the circumstances of this case, removal of the structures and restoration of the subject property are prospective remedies for an ongoing interference with the state’s rights under the easement and to abate an ongoing public nuisance, rather than a remedy for a past wrong,” the court majority wrote.
But a dissenting opinion included within the Dec. 4 appellate panel decision, written by Justice Deborah A. Dowling, calls the current case “a far cry from a disruptive land claim. . . . Although technically located in the state’s alleged right-of-way, there is no indication that the structures encroach or otherwise impede traffic on Sunrise Highway.”
Mr. Gumbs said the tribe’s contention “will always be that that land belongs to the Nation and New York has always treated it as restricted-fee lands against alienation and encumbrance. It is and was and will be within our right to have those monuments out there.”
