If worship on the Island is part of the religious practice of
the descendants of the Island's original inhabitants, then the
State's imposition of an entry fee raises serious constitutional
issues. As a threshold matter, however, the Court must determine
that Plaintiffs have standing to assert a First Amendment claim.
Unless a litigant suffers a personal injury that could be
redressed by a decision in its favor, there is no standing to
assert the claim. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There is
therefore a critical question concerning Plaintiffs' status: are
they Native Americans, and, if so, descendants of the original
tribe on the Island?
Plaintiffs makes various allegations of federal and state
recognition of the Western Mohegan Tribe and Nation that are
baseless. First, it is contended that the letter from the Corps
to plaintiff Roberts dated October 14, 1999 that granted him
access to the federal parcel on Houghtaling Island for religious
worship constitutes federal recognition. In fact, the letter is
merely a right of entry that confers no government-to-government
recognition of any kind; the use of the word "chief" in
referencing plaintiff Roberts is purely honorific, as has been my
own use of the word in various oral arguments and encounters with
plaintiff Roberts. In fact, the Bureau of Indian Affairs (the
"BIA") is the only agency empowered to recognize Native American
tribes; Plaintiffs previous application for recognition was
rejected due to significant deficiencies, unverifiable
statements, doctored original documents, and significant
omissions in all areas required by the acknowledgment
regulations. See Affidavit of R. Lee Fleming, BIA, sworn to
April 28, 2000, Exhibit A at 2.
Similarly, Justice John G. Dier, New York State Supreme Court,
Washington County, describes plaintiff Roberts as "Chief of the
Mohegan Tribe and Nation" in a decision he issued on July 3, 1993
enjoining Roberts from operating a bingo parlor in conjunction
with other "members of the Western Mohegan tribe." Plaintiffs
seize upon these references to argue that the decision recognized
Plaintiffs' status which was argued before Justice Dier.
Actually, judging from the brief submitted by the State to
Justice Dier, the focus was entirely on plaintiff Roberts'
failure to obtain a license or comply with the state gambling
ordinance: Plaintiffs status was irrelevant to Justice Dier's
decision, and was not even litigated. See Affidavit of Edward
M. Scher sworn to May 5, 2000, ¶¶ 4-6.
Equally damaging to Plaintiffs First Amendment claim is the
very real possibility that the Mohegan tribe from which they
allegedly descend never inhabited the Island. See Affidavit of
Paul R. Huey, Ph.D., New York State Bureau of Historic Sites,
sworn to April 27, 2000. Dr. Huey, an archeologist with an
interest in local history and anthropology, persuasively argues
that the Mahicans — a tribe with no cultural links to the
Mohegans and actually hostile to them — occupied the Island.
According to Dr. Huey, the Island's very name "Schodack" derives
from a combination of the Mahican words for fire — "ischoda" —
and earth or land — "akee." By contrast, the Mohegans, a
Connecticut tribe, employed a completely different dialect in
which the word for fire was "squotta."
Defendants have submitted various excerpts from historical
works, including a letter from George Washington, in which the
words Mohegan and Mahican are used interchangeably. Following a
review of Dr. Huey's affidavit, a strong case exists that these
authors were simply wrong, and works such as James Fenimore
Cooper's further muddied the waters by use of the ahistorical
The historical record is thus far from clear that Plaintiffs
are Native American and that the tribe from which they allege
descent ever dwelled on the Island. Absent such proof, the fee
imposes no cognizable injury on Plaintiffs.
Plaintiffs have not only failed to show a likelihood of success
on the merits of any of their claims, but also demonstrated
jurisdictional impediments to their federal claims. Lacking
jurisdiction over Plaintiffs' NAGPRA and NHPA claims, this Court
has a duty to dismiss them sua sponte. See Louisville &
Nashville Railroad v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42,
53 L.Ed. 126 (1908); McLearn v. Cowen & Co., 660 F.2d 845, 848
(2d Cir. 1981). Since standing is also a question of this Court's
subject matter jurisdiction, see Warth v. Seldin 422 U.S. 490,
498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), Plaintiffs' First
Amendment claim must likewise be dismissed. See Fed.R.Civ.P.
12(h)(3). Plaintiffs' remaining federal claim is brought under
42 U.S.C. § 1983. Although § 1983 serves "to ensure that an
individual [has] a cause of action for violations of the
Constitution," the statute itself "does not provide any
substantive rights at all." Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).
In the absence of any surviving federal claims, this Court
declines to exercise supplemental jurisdiction over the pendent
state claims. See United Mine Workers v. Gibbs, 383 U.S. 715,
716, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). A district court may
exercise supplemental jurisdiction over pendent state claims when
it has jurisdiction over associated federal claims that "form
part of the same case or controversy." See 28 U.S.C. § 1367.
Since this Court's subject matter jurisdiction rested on
unsustainable federal claims, supplemental jurisdiction is
inappropriate. See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867
(2nd Cir. 1998)
Accordingly, it is hereby
ORDERED that Plaintiffs' motion for a preliminary injunction is
DENIED and the case DISMISSED sua sponte for lack of subject
matter jurisdiction; and it is
FURTHER ORDERED that the Clerk of the Court serve a copy of
this Order on all parties by regular mail.
IT IS SO ORDERED.