Shinnecock Standoff: Tribe Questions Authority of Court Blocking Westwoods Construction

A Suffolk County judge has ordered the Shinnecock Nation to stop building a gas station on the tribe’s Hampton Bays property known as Westwoods, pouring more fuel on the long-burning legal fire.

Judge Maureen Liccione granted the Town of Southampton’s request when she issued a preliminary injunction on March 17 prohibiting the Shinnecock Nation Council of Trustees from directing and supervising the construction of the gas station and travel plaza. That decision came a week after attorneys for the tribe filed a motion to dismiss the case, arguing that it lacked jurisdiction because the Shinnecock have sovereign immunity — yet attorneys for the Shinnecock are expected to appeal to overturn the injunction.

“All activities in furtherance of construction of a travel plaza, gas station, convenience store, retail store, smoke shop, petroleum storage tanks, and appurtenant structures, including, but not limited to, excavation and paving on the land known as ‘Westwoods’ … are hereby enjoined during the pendency of this action and must cease immediately,” Liccione wrote in her order.

The clash comes as the Shinnecock, which won long-sought federal recognition in 2010 — joining nearly 600 tribes nationwide — is also working to build a casino on its territory in Southampton, as well as a hotel at Westwoods, riling some neighbors in surrounding communities that boast some of the priciest real estate in the country. It also comes as the tribe is simultaneously fighting a legal battle with the New York State Department of Transportation, which sought an injunction to block the tribe’s use of two 61-foot electronic billboards it built on the side of Route 27 in 2019.

“The trustees are elected to serve the Nation, but the real property and economic interests are exclusively those of the Nation, which cannot be sued,” attorneys for the Shinnecock wrote in their motion to dismiss, on which the judge has yet to rule. “The lawsuit seeks to eliminate the sovereign powers of the Nation on its restricted Indian lands, in direct contravention of the federal exclusion of restricted Indian lands  from Town control. The lawsuit interferes in the government-to-government relationship between the Nation and its federal trustee, neither of whom can be joined because of sovereign immunity.”

The Southampton Town Board hired the Philadelphia-based law firm of Morgan, Lewis & Bockius LLP to file its lawsuit in December against the Shinnecock to stop the gas station on the grounds that the 80-acre Westwoods is subject to local zoning laws, unlike the Shinnecock territory where the tribe lives in Southampton.

“Unlike the Shinnecock Reservation, which is not at issue here, Westwoods is not ‘Indian Country’ under federal law,” attorneys for the town wrote in their complaint. “The Nation does not have aboriginal title to Westwoods. Any aboriginal title the tribe may have had to Westwoods was extinguished in the 17th century when the Nation sold the land to non-Indians and the land was subsequently acquired by the town.”

The town argued in court papers that the tribe’s sovereign rights do not extend to Westwoods since the Shinnecock have not inhabited it “from time immemorial” and in this case, re-acquired it after it was sold to Colonial-era settlers.

“There is still a question about whether or not that parcel is subject to local zoning,” Southampton Town Councilmember Cynthia McNamara McNamara said after voting to sue the tribe. “And as long as that position remains unsettled and isn’t settled by a court of law, it potentially just moves the can down the road for the next board to deal with this.”

The Shinnecock counter that Westwoods is exempt from zoning and cited as evidence a recent letter from the U.S. Department of Interior — the parent agency of the Bureau of Indian Affairs — terming the land “restricted fee.”

“The department examined the land title status of the Westwoods parcel and determined that it is within the Nation’s aboriginal territory, that the Nation has resided within its aboriginal territory since time immemorial and has never removed therefrom, and that Westwoods is within the purview of the Nonintercourse Act and is therefore restricted against alienation absent consent of the United States,”  Bryan Newland, the Assistant Secretary of the Department of the Interior, wrote in a letter to the Shinnecock Nation Council of Trustees. “This land is and has always been restricted fee land held by the Nation and is now recorded to reflect such status.”

The town has not disputed that Westwoods is restricted fee, but counter that the distinction is different from the Shinnecock maintaining aboriginal title. The town issued a stop work order demanding that the Shinnecock ceased construction, but the tribe continued clearing the land, installing gas tanks, paving driveways, and building.

The tribe maintains that it is only trying to provide for its members. The travel plaza is projected to generate more than $900,000 annually for the Shinnecock within five years of completion, according to court documents.

“This project would provide vital support for the Nation,” Lisa Goree, who chairs the Shinnecock council, said in an affidavit. “For many years now, the bulk of our members have lived below the federal poverty line. The revenue the Nation anticipates from operation of the travel plaza will assist us to provide essential services to our members.”

Will the Shinnecock abide by the court order barring its construction crews from continuing their work? Stay tuned.