Second Circuit, over a Dissent, Denies En Banc Review of Shinnecock Casino Construction/Aboriginal Title Suit

Here is the dissent from the order denying en banc review:

CA2 Dissent from Denial of En Banc Petition — Shinnecock

The panel opinion and briefs are here.

Lower court materials are here and here.

Briefs in Shinnecock Second Circuit Gaming Case Now Available

We posted the opinion and lower court materials here.

And now the briefs:

Westwoods – Appellants

Westwoods – Appellees

Westwoods – Reply

Second Circuit Vacates Federal Court Injunction against Shinnecock Casino Construction in Southampton (Updated with Briefs)

Here is the opinion:


It’s the Second Circuit, so there are no briefs (unless someone sends them along). Here are the briefs:

Shinnecock Brief

State and Town Brief

An excerpt:

The Shinnecock Indian Nation and its tribal officials (collectively, the “Shinnecock” or the “Tribe”) appeal from a judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). After a bench trial, the district court granted a permanent injunction prohibiting the Tribe from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton. The Shinnecock object to a number of the district court’s factual and legal conclusions, including its findings: (1) that tribal sovereign immunity from suit does not bar this action; (2) that the Shinnecock’s aboriginal title to the land at Westwoods was extinguished in the seventeenth century; (3) that even if aboriginal title had not been extinguished, equitable principles would prevent the Shinnecock’s development of a casino in violation of state and local law; and (4) that the federal Indian Gaming Regulatory Act (“IGRA”) supplanted any federal common law right the Tribe may have had to operate the casino. They also argue that the Bureau of Indian Affairs’s recent recognition of the Shinnecock Indian Nation moots the injunction.

We conclude that the district court lacked subject matter jurisdiction over this action, and thus do not reach the merits of this appeal.

Lower court materials are here and here.

Shinnecock Loses Rule 59 Motion; Permanent Injunction Granted on IGRA Claim

New York successfully defended a judgment in its favor from last November (noted here) from a Rule 59 motion to modify the judgment. Also, the district court issued a permanent injunction against the Shinnecock Indian Nation, preventing them from opening a gaming operation under the Indian Gaming Regulatory Act.

Here are the materials:

DCT Order Issuing Permanent Injunction

Continue reading

Shinnecock Case Materials

Here is a link to the opinion. Gaming Court Decision (October 31, 2007):
Part 1 | Part 2 | Part 3

Here is the tribe’s Shinnecock Trial Brief

and here is the tribe’s proposed findings of fact: Shinnecock Proposed Findings of Fact

Shinnecock Nation Loses Gaming Case

From Indianz: “Citing the “disruptive nature” of the Shinnecock Nation’s attempts to assert sovereignty, a federal judge on Tuesday blocked the New York tribe from opening a gaming facility on ancestral land. The tribe has lived on Long Island for thousands of years. Its reservation, located in the heart of the wealthy enclave known as the Hamptons, is recognized by the state as sovereign land. But in a 129-page ruling, Judge Joseph F. Bianco said a disputed parcel outside the eservation is not sovereign territory. Though the tribe owns the “Westwoods” land in fee, it lost aboriginal title hundreds of years ago, the lengthy decision stated. Bianco, a Bush appointee, said “the evidence overwhelmingly demonstrated in a plain and unambiguous manner that aboriginal title held by the Westwoods land was extinguished in the 17th century.” Yet even if aboriginal title still existed, Bianco said the tribe can’t use the site for gaming due to the “highly disruptive consequences” of the proposed 61,000-square-foot casino. Nearly 20 pages of the opinion were dedicated to the impacts of gaming on the environment, traffic, health and safety. To back up his reasoning, Bianco cited a recent U.S. Supreme Court case that has hurt several tribes as they pursue their land and sovereignty claims in New York. The Sherrill case required the Oneida Nation to go through the land-into-trust process before asserting sovereignty over properties within its ancestral reservation. The 2nd Circuit Court of Appeals has since used the decision to throw out a land claim by the Cayuga Nation and the Seneca-Cayuga Tribe. In his ruling, Bianco said Sherrill has “dramatically altered the legal landscape” of tribal claims. “The 2005 decision of the United States Supreme Court in Sherrill set forth the legal framework under which a court must examine equitable doctrines in the context of an attempt by an Indian tribe to re-assert sovereignty over a parcel of land,” Bianco wrote.”

This case raised very narrow issues, but some of the issues have resonance throughout Indian Country. First, the court held that there is no common law right for Indian tribes to operating gaming facilities outside of the framework established by IGRA. Second, implicitly, the court held that Indian tribes cannot operate gaming facilities on fee land off the reservation. These are not terribly important questions, except to tribes with no usable land and to non-recognized or state-recognized tribes.
The opinions are here:

Gaming Court Decision (October 31, 2007):
Part 1 | Part 2 | Part 3

Land Claim Court Decision:
Shinnecock Nation v. New York (November 28, 2006)

Federal Recognition Court Decision:
New York v. Shinnecock Nation (November 7, 2005)