Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the June 30, 2012 mailing of "Constructive Notice":

Possessory Land Claims by Indian Tribes

The long-awaited decision of the U.S. Second Circuit Court of Appeals in State of New York, et al. v. Shinnecock Indian Nation, et al. (#08-1194-CV) has finally been handed down.

The underlying controversy stems from the attempted construction of a casino on “Westwoods,” land claimed by the Shinnecock Tribe pursuant to a claim of aboriginal title. The State of New York, two State agencies and the Town of Southampton had commenced actions in New York State Supreme Court claiming violations of various state and local laws. The Tribe removed all the state court proceedings to the U.S. District Court for the Eastern District of New York asserting “that on the basis of federal Indian law, neither the State nor the Town has the power to regulate activities at Westwoods because the Tribe has aboriginal title to the land.” The District Court conducted a bench trial and ruled in favor of the plaintiffs. The Tribe appealed.

Despite the fact that all the parties asserted that the trial court had subject matter jurisdiction based on federal questions the case appeared to raise, the Second Circuit undertook an independent examination of the question. Invoking the long-standing “well-pleaded complaint rule” applicable to determination of federal question jurisdiction, the panel, split 2-1, determined that subject matter jurisdiction was lacking. The Court explained that the State and Town alleged only violations of state and local law and merely asserting the defense of Tribal sovereign immunity under federal law was insufficient to support jurisdiction. 

Most interesting from the land title perspective, the Tribe also argued that a federal question existed under the U.S. Supreme Court decision in Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974). But that case had taken great care to recognize the “well-pleaded complaint rule” and drew a bright line distinction between a case where “the right to possession itself is claimed to arise under federal law” and one “which depends for its federal character solely on possible federal defenses.” The Shinnecock case was remanded with instructions to transfer it back to the state court.

In a dissent approximately twice as long as the majority opinion, Circuit Judge Hall finds “that resolving whether Westwoods is Indian land or is held by aboriginal title ... is absolutely necessary to resolving” the controversy and thereby supports jurisdiction. He goes on to give a detailed account of the development of modern tribal sovereign immunity jurisprudence, concluding that it does not bar enforcement of the state and local laws at issue here. He would “affirm the district court's well-supported analysis concluding that the historical record demonstrates the Tribe's aboriginal title to Westwoods was extinguished in the 17th century and that, in the absence of aboriginal title, the Tribe is subject to the application of state and local laws.”


It looks like rather long odds on this casino being built in the original location. It remains to be seen whether the Tribe will “roll the dice” on a certiorari petition to the U.S. Supreme Court or take its chances in state court. Either way, final resolution of the issues would likely take years. In the alternative, the Tribe could bring its own “Oneida” action in Federal Court, thereby establishing jurisdiction. But both the trial court and the dissenting judge have already given their non-binding view of the title evidence. The smart money is betting on a negotiated alternative location that will be a “win-win” for most of the stakeholders.