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:

08-1194_complete_opn

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 Gaming and Federal Recognition News

From the NYTs:

The Shinnecock Indian Nation cleared a major hurdle toward its goal of federal recognition on Tuesday when it entered into a settlement with the Interior Department that requires a preliminary ruling on its tribal status by the end of the year.

Shinnecock leaders would like to run the first casino in downstate New York, and wrote to Gov. David A. Paterson on Tuesday, citing the settlement as an impetus to begin talks with the state on a range of issues.

After a court fight of more than 30 years, the Shinnecocks believe that federal recognition is in their grasp; they have long been recognized by the state, and a federal judge described them as a sovereign tribe in a 2005 ruling. The settlement gives the federal government until Dec. 15 to make a preliminary ruling on the Shinnecocks’ status.

The implications for New York could be considerable.

Continue reading

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

Ilitch’s Involved in Indian Gaming Development (Speculation?)

From the Freep:

Pair betting on a huge payoff from casinos

Ilitch, Malik raise stakes in Indian gaming

BY TODD SPANGLER

FREE PRESS WASHINGTON STAFF

WASHINGTON — Marian Ilitch and Michael Malik are spending big money to navigate political hurdles for their plans for American Indian casinos on both coasts and in Michigan.

Ilitch is one of Michigan’s most powerful and wealthy women as owner of the MotorCity Casino and co-owner of the Detroit Red Wings with her husband, Mike, who also owns the Detroit Tigers. Malik is a big-time real estate developer, casino entrepreneur and, in at least a couple of ventures, Marian Ilitch’s partner.

Together, they have spent more than $1 million on lobbyists for their casino proposals and made more than $400,000 in political contributions during the last five years.

Money has gone to Northeastern Democrats, West Coast Republicans and many key races and causes in between. A few months after a fund-raiser for Sen. Carl Levin early this year, the Detroit Democrat agreed to support a casino project in Port Huron, despite opposition from some city officials and its congressional delegation.

So far, the investments have not led to approvals for the casino proposals, but the potential payoff is enormous.

“It could mean as much as $100- to $200 million a year for the Ilitches. … So it’s certainly worth their while,” said Roger Gros, publisher of Global Gaming Business, a trade magazine. Whatever they’re spending, he added, “is peanuts compared to what they could take in.”

Their bets are still long shots, having run into a stretch of bad luck. In California, where Ilitch and Malik are working with two tribes for a casino in Barstow, on the road from Los Angeles to Las Vegas, the legislature let a compact expire.

In New York, where they are working with the Shinnecock Indian Nation, a federal judge has ruled against the tribe’s land claim in Southampton.

Last week, a House committee abruptly delayed a hearing on the plan for an Indian casino in Port Huron. Unlike the other proposals, Malik and the Bay Mills tribe from the eastern Upper Peninsula are working without Ilitch. Though it has her tacit support, she can’t be directly involved because of her casino ownership in Detroit.

Tom Shields, a spokesman for Ilitch and Malik, said the proposals all are in play.

“You can’t get into this thing unless you’re going to be in it for the long haul,” Shields said. “If you are successful, obviously, the investment pays off.”

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)

The Shinnecock Tribe and the Handbook of Federal Indian Law

The Shinnecock tribe has an interesting argument in favor of their federal recognition. From the East Hampton Star:

“The Shinnecocks have since sued the Department of Interior in federal district court to be placed on the list. They maintain it is illegal to not place them on the list after they have received federal judicial recognition.

“The tribe also filed an amended complaint incorporating documents that show that the tribe was listed in a 1914 Department of Interior report to the United States Congress as a tribe in New York State subject to federal jurisdiction with federally protected lands. This was reaffirmed in other department lists dated 1929, 1938, and 1941, according to the Shinnecocks.

Mr. Gumbs noted that the tribe was also included in a book “The Handbook of Federal Indian Law,” compiled by Felix Cohen for the Department of the Interior in 1945, which includes the Shinnecocks in its listing of tribes in New York State. The tribes listed here and in the other department lists have all since been added to the department’s current list of federally recognized tribes or have successfully sued to be placed on it without having to go through the Bureau of Indian Affairs review, he said.

More details of the tribe’s claims are here.