Judge rejects Shinnecock move to dismiss Southampton lawsuit on gas station

A state Supreme Court justice who shut down construction of a Shinnecock Nation gas station in Hampton Bays rejected the tribe’s request to dismiss a December lawsuit brought by the Town of Southampton to stop the construction.

Justice Maureen T. Liccione in a 21-page ruling last week rejected the Shinnecock Nation assertion that a January finding by the U.S. Department of the Interior that the 80-acre Westwoods parcel on which the gas station is under construction has any special status that would protect it from town zoning laws or other restrictions.

The prior ruling to cease construction has cost the tribe upward of $22,000 a day, Shinnecock leaders have testified, saying it is impacting tribal aid programs.

The tribe has repeatedly argued that Westwoods, affirmed by the Interior Department as "restricted fee" land that can only be alienated by an act of U.S. Congress, is not under town or state jurisdiction, and has asserted that state courts have no authority on the matter. The tribe has taken the case to federal court, where it awaits rulings. The town of Southampton has also sued the Department of the Interior, challenging its findings.

Liccione in her Oct. 6 ruling rejected every argument brought by the tribe to dismiss the case. "To the extent that any of the [Shinnecock] Trustees’ remaining contentions are not rendered academic by this decision, they have been considered and found to be without merit," she wrote in her conclusion.

The judge noted a previous finding by her court that Westwoods "is not ‘Indian Country,’" because it is "not part of the [Shinnecock] Reservation," a finding in conflict with Southampton Town and Suffolk County Tax maps that describe Westwoods as "Shinnecock Indian Reservation," said Lance Gumbs, vice chairman of the Shinnecock Council of Trustees.

Liccione ruled the reference to Westwoods as "Indian Reservation" on maps "does not indicate that Westwoods was set aside by the federal government."

She also found that a Bureau of Indian Affairs letter affirming the status of Westwoods as restricted fee "does not dispute that aboriginal title to Westwoods was extinguished," but rather "merely state[s] that ‘the Nation has resided within its aboriginal territory since time immemorial and has never removed therefrom." The federal finding that Westwoods is "within the confines of the Nation’s aboriginal territory," Liccione wrote "has nothing to do with whether the Nation held or lost aboriginal title to Westwoods."

Liccione wrote that because the Shinnecock Nation acquired Westwoods by "adverse possession, which was only because Westwoods had been owned by another party," thereby "established that aboriginal title in Westwoods had been extinguished."

State and federal court decisions this year have repeatedly referred to a vacated 2007 finding by former U.S. District Justice Joseph Bianco that cited deeds and documents nearly 200 years old to find a break in the tribal ownership of Westwoods, a claim the tribe’s scholars and lawyers have long disputed.

Gumbs noted Westwoods has been continually owned by the tribe and had been "used for firewood by the people of our community. They are not looking at the real history, but instead are using a European model of what possession of land meant. It was all stolen through fraud and manipulation."

James Burke, Southampton Town attorney, didn’t immediately respond to a request for comment. Gumbs said preliminary and informal talks about a potential settlement with the tribe have never been followed up by the town. "We haven’t heard one single word back from them," he said.

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.