WWW. NYLJ.COM VOLUME 265—NO. 55 WEDNESDAY, MARCH 24, 2021 ZONING AND LAND USE PLANNING Courts Address Disputes on By Anthony S. Indian Nation Lands Guardino ew York and federal a recognized, sovereign Indian tribe injunction enforcing its Tribal Coun- law both set forth rules in New York since colonial times; cil’s decision confirming the right of respecting Native Ameri- that status is, among other places, Curtis C. Treadwell, Sr., a blood-right can tribes. For instance, codified in Article 9 of the New York member of the Nation, to possess Section 2 of the New York Indian Law. certain property located within the NIndian Law defines the term “Indian Sovereign Indian tribes facing eco- bounds of the Poospatuck Reserva- nation or tribe” to mean one of the nomic woes often seek to develop tion, including a disputed portion following New York State Indian their property, or to simply main- claimed by Danielle Treadwell, nations or tribes: Cayuga Nation, tain control of their property, for another blood-right member of Oneida Nation of New York, Onon- the benefit of their members. When the Nation, and SmokesRUs, Inc. daga Nation, Poospatuck or Unke- disputes arise, New York courts may (together, the “defendants”). The chauge Nation, Saint Regis Mohawk become involved. defendants operated a gas station/ Tribe, Seneca Nation of Indians, Two recent cases, both arising convenience store on the disputed Shinnecock Indian Nation, Tonawa- on Long Island, illustrate the com- property that competed with one nda Band of Seneca, and Tuscarora plexities of the issues and the law, operated by the Nation. Nation. as well as the significant property The defendants asserted counter- The state and federal systems and financial interests involved. claims against the Nation seeking, are not necessarily completely among other things, a declaration A Property Dispute in sync. As an example, consider that Danielle Treadwell was entitled that although it was not until 2010 The Unkechaug Indian Nation (the to possession of the disputed por- that the Shinnecock Indian Nation “Nation”) occupies the Poospatuck tion of the property. received formal recognition by the Reservation in Suffolk County. The Thereafter, the Nation convened a U.S. Bureau of Indian Affairs, the case Unkechaug Indian Nation v. special meeting of its membership for Shinnecock Indian Nation has been Treadwell, No. 614783/18 (App. the purpose of determining whether Div. 2d Dept. March 3, 2021), arose Danielle Treadwell was an “undesir- ANTHONY S. GUARDINO is a partner with Farrell when the Nation asked the Supreme able person” within the meaning of Fritz, practicing in the areas of land use, zoning, and Court, Suffolk County, for a declar- its Tribal Rules such that she could environmental law. He can be reached at aguardino@ farrellfritz.com. atory judgment and a permanent be denied the right to occupy land WEDNESDAY, MARCH 24, 2021 within the Poospatuck Reservation. subject matter jurisdiction of state Billboards A majority of the voting members courts “must be predicated on present at the special meeting voted explicit authorization from Congress The second case, Commissioner to determine that she was an “unde- to address matters of tribal self-gov- of the N.Y. State Dept. of Transp. v. sirable person.” The Tribal Council ernment.” Moreover, it continued, Polite, 67 Misc. 3d 1222(A) (Sup. Ct. subsequently adopted a resolution “when it comes to Indian affairs, Suffolk Co. 2020), is part of an ongo- and directives that, among other state courts are courts of limited ing dispute between the Shinnecock things, resolved that occupancy of jurisdiction.” Indian Nation and New York State the disputed portion of the property The Second Department then authorities. be withheld from Danielle Treadwell ruled that, by asking the Supreme The action was brought by the and directed that she “cease and Court to determine that Curtis State of New York and the commis- desist” from occupying, using, and Treadwell was the rightful pos- sioner of the New York State Depart- possessing the disputed portion of sessor of the property, the Nation ment of Transportation against offi- the property. The Nation also placed had waived its sovereign immunity, cials and trustees of the Shinnecock concrete barriers around part of the Indian Nation (the “Tribe”) in an disputed portion. Sovereign Indian tribes facing econom- effort to enjoin the construction The Supreme Court found that ic woes often seek to develop their and operation of two approximately the Nation’s undesirability deter- property, or to simply maintain control 60-foot tall electronic billboards— mination and the Tribal Council’s of their property, for the benefit of their referred to as “monuments” by the actions based on that determina- members. When disputes arise, New defendants—on opposite sides of tion rendered the action as a whole York courts may become involved. the state’s declared and recorded academic. Accordingly, the court right of way for Route 27, Sunrise dismissed the complaint and the although only as to that determina- Highway, where it bisects a tract, defendants’ counterclaims, and the tion and its enforcement. However, or tracts, of land long owned and defendants appealed. the appellate court added, once the occupied by the Tribe in the town The Second Department affirmed. Nation proceeded to take the unde- of Southampton. The Tribe sought In its decision, the appellate court sirability vote and issue the tribal to benefit from advertising revenue explained that, when acting within resolution and directives based on generated by the signs. its territorial boundaries and with the membership’s vote, the Nation, The state moved for a preliminary respect to internal matters, an Indi- pursuant to its own Tribal Rules, cre- injunction enjoining the completion, an nation retained the sovereignty ated a new and independent basis, maintenance and operation of the it enjoyed prior to the adoption under its sovereign authority, for signs, and the defendants’ moved to of the U.S. Constitution except to excluding Danielle Treadwell from dismiss for failure to join the Tribe the extent that its sovereignty had the disputed portion of the prop- as an indispensable party and, with been abrogated or curtailed by Con- erty. Thus, once the Supreme Court respect to those defendants who gress. As such, the Second Depart- was informed of the undesirability were trustees of the Tribe, on the ment continued, “tribes possess the determination, it could not take any ground that they were clothed with common-law immunity traditionally action with respect thereto, as this the same sovereign immunity as the enjoyed by sovereign powers.” was a sovereign act of the Nation Tribe itself. The appellate court pointed outside the court’s subject matter In addition, the state sought out that, because of the retained jurisdiction, the Second Department the imposition of contempt sanc- sovereignty of Indian nations, the concluded. tions against the defendants for WEDNESDAY, MARCH 24, 2021 completing the construction of Accordingly, the court concluded, February and both signs now are the signs and operating them not- a preliminary injunction prevent- operational. The state has notified withstanding a previously entered ing the operation of the signs was the Tribe that the signs require temporary restraining order. “unwarranted” because the plain- special permits that have not been The Supreme Court, Suffolk tiffs would suffer no irreparable obtained and, as a result, is seeking County, first denied the defendants’ harm in the absence of a prelimi- fines of $1,000 per day per violation. motion to dismiss based on the nary injunction and the equities did There also may be further litiga- Tribe’s absence as a defendant. not balance in favor of the state, tion ahead for these parties. The Quoting from the decision by the provided that the defendants con- Tribe has announced plans to con- New York Court of Appeals in structed and operated the signs in struct a 76,000-square-foot casino Saratoga County Chamber of Com- compliance with appropriate struc- on its land just off Montauk High- merce, Inc. v. Pataki, 100 N.Y.2d 801 tural and other safety standards. way on the East End of Long Island (2003), the court noted that the that would include a bingo parlor, Conclusion Tribe had “chosen to be absent” 1,000 video lottery terminals, and and that it had not been denied Although the Unkechaug Indian 30 “Texas Hold ’em” table games. the “opportunity to be heard.” Nation litigation may have reached a In addition, according to reports, The court then ruled that the conclusion, that is not the situation the Tribe plans to open a gas sta- relief sought by the state could be regarding the disputes between the tion/convenience store on its land obtained by proceeding against the Shinnecock Indian Nation and New near the signs in the coming year. Tribe’s officials, even in the absence York State. It also apparently has begun plans of the Tribe as a defendant, given Following the Supreme Court’s for a medical cannabis facility to that “a governmental body, includ- decision, the state and the Tribe be located on its Southampton ing a sovereign Indian Nation, can defendants both appealed to the property. act only through the instrumentality Second Department. Thereafter, the Just how the existing disputes of its officials.” Tribe defendants filed a motion for a between the Tribe and the state Finally, the court denied the state’s stay pending appeal. On December over the signs and potential future motion for a preliminary injunction. 23, 2020, the Supreme Court granted disputes between these parties It explained that, ultimately, the bur- the motion solely with respect to over other projects will conclude den would be on the state to refute a still-pending motion by the state remains to be seen.