Feds: Shinnecocks not a tribe

By Bill Bleyer

In a major setback for the Shinnecocks, the federal Interior Department has declared it is not bound by a November court ruling that the nation is a federally recognized tribe.

The opinion means the Shinnecocks would have to continue pursuing the Bureau of Indian Affairs' prolonged recognition process unless a judge orders the bureau to add the Shinnecocks to the list of federally recognized tribes. And even then, say legal experts who expected the decision, the agency is likely to ignore the order.

A decision on the tribe's petition, filed in the late 1970s, would take years because the agency says it has 17 petitions to rule on before it gets to the Shinnecocks.

Having to go through the BIA process would delay the tribe's push to build a casino in Hampton Bays.

"As far as the federal government is concerned, they're back where they were before the Nov. 7 decision," said Michael Cohen, an attorney representing Southampton Town in the litigation.

Tribal leaders were talking to their attorneys last night and declined to comment.

The agency's position was revealed in a letter written last month to Sen. Charles Schumer (D-N.Y.) in response to his letter in November to Interior Secretary Gale Norton urging federal officials to disregard the judge's decision.

Schumer's letter came a week after U.S. District Court Judge Thomas Platt ruled the Shinnecocks are a tribe but their effort to build a casino would still be subject to a trial. Platt declined to comment yesterday.

Schumer said yesterday, "It's what the Department of the Interior should have done. Judge Platt was way out of line. They're going to have to go through the process. That's their only real course of action."

In his response to Schumer, James Cason, associate deputy interior secretary, said, "The Department of the Interior does not consider the Shinnecock petitioner to be a federally recognized Indian tribe ... With all due respect to the District Court, it remains the Department's position that the Shinnecock petitioner should continue through the agency's federal acknowledgment process ..."

The department said it's not bound by the ruling because it is no longer a party in the case. Cason noted that the agency had been named as a party by Platt in 2003 but successfully moved to be dropped the following year.

"We're not surprised," Cohen said of Interior's decision. "This is the position the United States articulated before the court ... and we believe it's correct. There is a mandated process for federal acknowledgment. The Shinnecocks invoked that process and they ought to continue through the process to its conclusion."

Cohen doubted a follow-up court order to BIA to add the tribe to the federal list would have much impact. "If they're not a party, that's one significant impediment to ordering them to do anything."

Keith Harper, an attorney with the Native American Rights Fund in Washington, D.C., agreed. "It's not surprising that they would take that attitude when they're not a party," he said. "There have been too many decisions where the BIA simply fails to abide with the rulings of courts, even when directed to do so."

Cohen said the case will go on to deal with local zoning issues raised when the Shinnecocks broke ground to build the casino.