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State ran ads on tribal billboard it now threatens to remove

New York State bought ad space on this

New York State bought ad space on this electronic billboard erected by the Shinnecock Nation in Southampton.  The state is now threatening to remove it and a sister structure. Credit: Randee Daddona

Even as it threatens to remove a pair of Shinnecock Indian Nation electronic billboards in a sharp escalation of a two-year dispute, New York State confirmed Wednesday that it had paid to advertise on one of them.

The state Department of Parks, Recreation and Historical Preservation confirmed a statewide campaign for boater safety included "multiple digital, radio and billboard advertisements across the state," including the tribal monument billboard on Shinnecock land on the south side of Sunrise Highway, spokesman Dan Keefe said. "The specific billboard locations were selected by the vendor," he said of the campaign, which ran for several weeks during the summer and ended in September.

Last week, the state issued a stop-work order as the tribe restarted work on a second billboard on the north side of Sunrise Highway, just west of Shinnecock canal, also on tribal land. In a subsequent letter to tribal leaders, the state Department of Transportation threatened fines of $1,000 per day per violation for lacking permits to complete the work, and for operating the existing billboard. It also threatened to remove both structures, which reach 61 feet high with electronic messaging, within 30 days.

The tribe, in a statement Sunday, publicly refused to obey the state’s order, saying the state had no authority on tribal land. The Shinnecock Nation itself governs such projects, and the recent work includes a placard with a Shinnecock work permit signed by tribal trustee chairman, Bryan Polite.

The tribe "refuses to cave" to the department's demands, the statement said, "because the DOT lacks authority over Nation lands." The billboards are a tribal economic engine at a time when COVID has forced cancellation of its revenue-generating powwow, but they also serve "as a powerful reminder that the Shinnecock People still occupy their ancestral lands despite centuries of racial and economic oppression by the state," the tribe said.

In response, Joseph Morrissey, a spokesman for the Department of Transportation, said in a statement that "state Route 27 is a state highway and the billboards are located on the state’s right of way."

Construction of the structures, he added, "is in direct violation of federal and state law — jeopardizing eligibility for federal funding to maintain and renew this section of the highway — and poses an imminent health and safety risk to the public, as no engineering work was performed and no protection from motorists striking the signs is in place."

Polite on Thursday called Morrissey's claim of the lack of an engineering plan "a lie," saying the tribe has specifically shared it with the department. Site and work plans have been shared with the department since the project's inception, he said, adding the plans go beyond state requirements for safety.

Tela Troge, a tribal attorney and Shinnecock member, said the state's claim of a right of way on the Sunrise Highway parcel is based on a document the state drew up 1959 without any tribal signature or compensation to grant the state a permanent easement to use the property, in violation of federal Indian law. "It was never signed by the tribe or agreed to by the tribe," she said, referring to the practice as "brazen and offensive to indigenous people."

She also noted that the federal laws that prohibit signage on highways don't apply to tribal land of federally recognized tribes. She said the tribe worked with federal agencies in advance of erecting the signs. "There's no threat to state highway funding from our project," she said.

The state has firsthand experience in the potential loss of eligibility for federal funding because of sign placement. Gov. Andrew M. Cuomo's "I Love NY" campaign in 2016 included installation of 514 road signs that drew the scrutiny of federal regulators, who threatened to withhold federal funding unless they were removed. The department removed them in 2018.

The tribe said it has met or exceeded all state rules for roadside construction, including electronic road signage, cones and other barriers. And a state Supreme Court justice in a ruling last May rejecting the state’s request for a temporary restraining order found the billboard construction to "pose no unacceptable safety risk."

Asked how the tribe would respond to an attempt by the state to remove the billboards, Polite said the tribe "will defend our sovereignty and defend our tribal land."

"Threatening to destroy our property and literally take money out of tribal coffers is an act of economic warfare," he said. "It's unconscionable, especially in a time of a pandemic," with cases escalating on the tribe's Southampton reservation.

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