Shinnecock Nation Sees Victory In Judge’s Split Ruling On Sunrise Highway Signs Case On Monday

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The Shinnecock Nation electronic billboard.

Both sides won, both sides lost, and there was no real resolution in a State Supreme Court justice’s ruling late Monday on the state’s attempt to block the Shinnecock Nation from operating a pair of electronic billboards along Sunrise Highway in Hampton Bays.

That said, on closer examination, Justice Sanford Neil Berland’s decision to reject the state’s request for a preliminary injunction, which would have forced the one sign that was erected a year ago to go dark, offers a potentially significant ray of hope for the Nation — and possibly a stronger bargaining position in seeking a solution to the dispute outside of court.

The plaintiffs, the State of New York and the commissioner of the State Department of Transportation, are suing to force the removal of the sign on the eastbound lanes of state-owned Sunrise Highway, which passes through tribe-owned land that straddles the highway at the site. The state has sued the individual Tribal Trustees and their commercial partners in the sign enterprise, saying they did not seek state permission for the signs, and obtained a temporary restraining order on May 24 of last year.

The tribe has maintained that it does not need permission, as the signs are on sovereign land, and thus not subject to state rules.

Justice Berland will allow the case to proceed, but he noted that the state had failed to meet crucial requirements for issuing a preliminary injunction: The judge must be convinced that the plaintiffs have “a likelihood of success on the merits” of the case. The plaintiffs also have to show “irreparable injury” if the injunction is not granted.

Justice Berland said the state had made neither case effectively. But the more significant part of that ruling is the first part: He said the state, in making the argument, “largely relies on the outcome of inconclusive prior litigation between the State and the Nation.”

A 2007 U.S. District Court ruling on the Westwoods property in Hampton Bays, which extends to the highway, rejected the tribe’s aboriginal claims on the land — but an appeals court later overturned that ruling based on a lack of jurisdiction.

In this case, the plaintiffs had cited the earlier ruling, since overturned. That led Justice Berland to issue a different summation of the current law — one that favors the Nation.
“It is undisputed that the Shinnecock Nation’s ancestral domain encompassed essentially the entirety of what is now the Town of Southampton, and it has been established that the presence of the nation in that domain has been continuous,” he wrote.

He noted that the plaintiffs will have to prove otherwise to win the case, adding, “On the current record, it is impossible to conclude that the plaintiffs will succeed in doing so.” He also cast a favorable light on tribal officials’ arguments that Westwoods is part of the tribe’s aboriginal lands, and has been, historically.

That was enough for Bryan Polite, chairman of the Shinnecock Nation Board of Trustees, to see a clear victory in the ruling.

“We were very pleased with the judge looking into the state’s argument,” he said, noting that the judge sided with the tribe’s long-held stance dismissing fraudulent land transactions in the last few centuries that were used to challenge the idea that Westwoods was aboriginal land held consistently by the tribe.

It took Justice Berland nearly a year to issue the ruling — the anniversary of the filing is Friday — a delay that had irritated tribal officials. But on Tuesday, Mr. Polite noted, “In retrospect, his thoughtfulness in making this decision cannot go ignored. He really did his research into all of the components of this case.”

Lance A. Gumbs, vice chairman of the Tribal Trustees, agreed: “He went right to the heart of this to say that not only [Westwoods] but, basically, all of Southampton is the aboriginal territory of the Shinnecock.” He added, “For us, it’s a real victory on several fronts.”
The Nation did lose in other ways. Its claim that the defendants, all of them, were protected by the Nation’s sovereign status was rejected by Justice Berland.

It’s notable that the Shinnecock Nation itself is not a party to the lawsuit — the state instead sued its individual Tribal Trustees, and its partners in the sign project. Mr. Gumbs, who is active on Indian Country issues at the national level, said that is a common tactic to sidestep sovereignty claims. The ruling, he said, would attract attention at the national level.

Mr. Polite rejected the judge’s ruling on the subject as “convoluted,” and he added, “We feel very confident that would not stand up on appeal. … It’s not settled case law yet, put it that way.”

Likewise, the Nation will have to appear in court — via videoconference — in June regarding the plaintiffs’ contention that by operating the sign continuously since the temporary restraining order issued last year on May 24, the tribe has been in contempt of court. Justice Berland did not rule on that part of the case.

Mr. Polite chose to see the ruling as an important moment in the ongoing struggle over the signs — but also part of a much wider dispute over the Westwoods property and its history.
The judge’s decision not to issue a preliminary injunction means the tribe is “no longer any restraints” in operating the signs, Mr. Polite said. That’s crucial, he said, because national advertisers backed out of agreements last year, fearing legal ramifications.

Mr. Gumbs said the Nation originally had a dozen or more national advertisers in place, expecting revenues of $2 million a year or more from a pair of “monuments” on both sides of the highway, each with two screens.

Today, the tribe is making about one-quarter of that revenue on single two-screen billboard, and no national advertisers currently. “The economic impact to the tribe cannot be underestimated,” he added, noting that all of the revenue was intended to go toward social and municipal programs to benefit the entire Nation.

The second billboard has yet to be constructed, and Mr. Polite said there are no current plans to start the work, based on the financial circumstances — though the ruling could begin to change that.

Both Mr. Polite and Mr. Gumbs said the ruling could help the Shinnecock Nation resolve the dispute with the state via direct negotiations, now that the state’s legal position is weakened.

“Our hope is, instead of trying to bleed us dry some more … [they will] sit down with us and come up with some kind of working solution,” Mr. Polite said.

Mr. Gumbs said he had met with New York State Attorney General Letitia James earlier and planned to reach out, seeking to resolve the dispute through a conversation involving “government to government entities” — on equal terms.

In the meantime, Mr. Polite was happy with a victory of any kind in court. “We don’t usually get a lot of victories like this. Usually, we’re on the other side,” he said.

But he said the tribe’s members are keeping it in perspective: “They know the war is not over, but we won a very significant battle.”

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