Turtle Talk

Here are the materials in Town of Southampton v. Goree (N.Y. S. Ct.):

It is unfortunate that the court employed the City of Sherrill-based “equitable defenses” analysis here. That decision, which Justice Ginsburg later regretted writing, is one of the most casually cruel decisions in Indian affairs history. The notion that any tribal action that “disrupts” the “settled expectations” of the settlers could be summarily dismissed. Effectively, any disruption at all is enough, even if no one provided any real evidence of “disruption” (whatever that is). Filing a lawsuit is “disruption.” Given the utterly lawless and indeterminate Sherrill defenses, the court here made the following conclusions (not sure of law or fact, I guess both?):

Here, as in Polite, Plaintiffs are likely to succeed on their claim because “this case presents the type of disruptive land claim that would be barred under the doctrine of City of Sherrill” (Polite, 225 NYS3d at 141). As noted above, homeowners neighboring Westwoods are currently and will be adversely affected by the construction of the Travel Plaza. Further, there is a settled expectation on the part of the area residents that the Town would maintain Newtown Road in its present condition and would regulate the proper location of curb cuts, as well as ingress and egress to the Travel Plaza. There is a settled expectation that the roadway would not be cut into wooded lands in a residential rural area in order to permit access to the 20 pump gas station, smoke shop, retail, and convenience stores from the heavily traveled Sunrise Highway. There is a settled expectation of the neighboring residents that Westwoods would preserve its residential character, that there would not be thousands of additional motorists driving on Newtown Road and across the newly constructed road to access the Travel Plaza, and that there would not be a major commercial development in a residential zone that has been forested for centuries. There is an expectation on the part of the residents and homeowners that State and local laws will protect their health, safety and welfare by imposing site plan controls, which would likely require adequate buffers between their homes and the Travel Plaza.

I’ve written on tribal disruption several times (here is a representative sample) to show that the assumptions underlying Sherrill are empirically false. Moreover, there is no limiting principle to the Sherrill reasoning. Moreover (again), the “equity” analysis rejects any tribal nation’s interests in restoring its land, economic, and governmental bases, destroyed over decades or centuries of illegal and often downright evil acts of current settlers predecessors. Finally, Sherrill can and should be a dead letter given that the judiciary has turned to textualism. Oklahoma after all figuratively just screamed “Sherrill!” at the Supreme Court over and over again in McGirt, only to be turned away for not making arguments rooted in legal text — McGirt can and should be — must be — read as repudiating Sherrill.

The court’s recitation of the “settled expectations” of the settlers here is nothing more than a list of land use grievances akin to NIMBY complaints. We get, these non-Indians don’t want Indians around. That’s what the reasoning of Sherrill (and similar cases like Patchak I, where SCOTUS held that being angry about tribal casino construction was “injury in fact” for standing purposes) suggests, but those are simply policy preferences made “law” by judges and should have no jurisprudential value.