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Gristede's Foods, Inc. v. Unkechauge Nation

October 8, 2009


The opinion of the court was delivered by: Matsumoto, United States District Judge


Pending before the court is the motion of defendants Unkechauge Nation a/k/a Unkechauge Poospatuck Tribe, Harry Wallace, and the Poospatuck Smoke Shop and Trading Post to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons set forth below, the defendants' motion is granted with respect to the Unkechauge Nation and Harry Wallace, to the extent that Harry Wallace is sued in his official tribal capacity. The defendants' motion is denied with respect to Harry Wallace in his individual capacity and with respect to the Poospatuck Smoke Shop.

I. Procedural History


On March 20, 2006, plaintiff Gristede's Foods, Inc. ("Gristede's" or "plaintiff") commenced this action against the Unkechauge Nation, a/k/a Unkechauge Poospatuck Tribe (the "Unkechauge," "Poospatuck" or "tribe") and the Shinnecock Tribe, a/k/a the Shinnecock Indian Nation (the "Shinnecock"); individual defendants Harry Wallace ("Wallace" or "Chief Wallace"), Randall King, James W. Eleazer, Jr., and Lance A. Gumbs; the Poospatuck Smoke Shop and Trading Post (the "Poospatuck Smoke Shop" or "Smoke Shop") and Shinnecock, Ltd. Plaintiff, a chain of supermarkets in the New York City area, alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68, and the Lanham Act, 15 U.S.C. § 1125(a), and state law claims for unjust enrichment, unfair competition, deceptive trade practices, and false advertising arising from defendants' tax-free cigarette sales and advertising. The Unkechauge inhabits approximately 50 acres of land along the bank of the Poospatuck Creek on the southern coast of what is now the Town of Brookhaven on Long Island, New York.

In July 2006, the defendants who were parties to this action at the time filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that they are immune from suit by virtue of their sovereign status as Indian tribes or entities thereof. In an order dated December 22, 2006, the court deferred ruling on the Rule 12(b)(1) motion pending further briefing and an evidentiary hearing on the tribal status of the Shinnecock and Unkechauge defendants. (Dkt. No. 29 at 12 (holding that the criteria for tribal recognition pursuant to federal common law as articulated by Montoya v. United States, 180 U.S. 261, 255 (1901) applies to the determination of the Shinnecock and Unkechuage defendants' tribal status).) After filing a motion for reconsideration, the defendants were granted leave to file new motions pursuant Rule 12(b)(6). Defendants' motions to dismiss pursuant to Rule 12(b)(1) and for reconsideration were subsequently withdrawn without prejudice to reinstatement of the Rule 12(b)(1) motion if their new Rule 12(b)(6) motions were denied. (Dkt. No. 41.)

On November 5, 2007, the court denied in part the defendants' motion to dismiss pursuant to Rule 12(b)(6) and permitted the defendants to renew their motion to dismiss pursuant to Rule 12(b)(1). Judge Amon referred discovery and the evidentiary hearing relating to the defendants' tribal status to the undersigned, who was the assigned Magistrate Judge at the time. The court set dates for discovery on the issue of tribal status and a hearing for the defendants' Rule 12(b)(1) motions. On November 28, 2007, Judge Amon issued a supplemental order, detailing the court's reasoning for its November 5, 2007 partial grant and denial of defendants' motion to dismiss pursuant to Rule 12(b)(6), and granting plaintiff leave to amend its complaint. On December 21, 2007, plaintiff filed an Amended Complaint to include those claims sustained by the court - the false advertising claim under the Lanham Act and the state consumer fraud claims - and to properly name Lance A. Gumbs in his individual capacity for his ownership and operation of the Shinnecock Trading Post, previously identified as Shinnecock, Ltd. Defendants Shinnecock, Randall King, James W. Eleazer, Jr., Lance A. Gumbs and Shinnecock Trading Post subsequently decided not to pursue their Rule 12(b)(1) motion and successfully requested that the court vacate the tribal status discovery schedule as to them. (Dkt. Order 1/4/08.)

Discovery on the issue of tribal status proceeded before the undersigned with regard to the remaining Unkechauge defendants. Following the undersigned's appointment as a United States District Judge, the case was reassigned from Judge Amon on August 15, 2008. On August 18, 2008, plaintiff filed a Second Amended Complaint naming additional defendants not parties to the Rule 12(b)(1) motion. The evidentiary hearing regarding tribal status was held on September 3, 2008 through September 8, 2008, before the undersigned. At the close of the hearing, the court ordered the parties to "confer regarding the submission of a comprehensive collection of the exhibits admitted into evidence and file those exhibits by ECF no later than 9/15/08." (Minute Entry 9/8/08; 9/8/08 Tr. at 289-290.)*fn1

The parties complied with the court order and submitted a complete copy of all admitted joint exhibits on September 15, 2008. (Dkt. Nos. 168-372.) The parties submitted pre- and post- hearing briefs and the court heard closing arguments on December 22, 2008.

II. The Tribal Status Hearing

In deciding a Rule 12(b)(1) motion to dismiss, the court may rely on and refer to evidence outside the pleadings. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). Pursuant to Judge Amon's order of December 22, 2006, the court held an evidentiary hearing on the issue of whether the Unkechauge meets the common law definition of a "tribe," defined by the United States Supreme Court in 1901 as "a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory" ("Montoya criteria"). Montoya v. United States, 180 U.S. 261, 266 (1901).

At the hearing, the court first heard testimony from defendants' expert witness, Dr. John Strong, and fact witness, defendant Harry Wallace, Chief of the Unkechauge. The court qualified Dr. Strong as an expert in the area of Native Americans in Colonial America with an emphasis on the Indians of the East Coast and Long Island. (9/3 Tr. at 17.) Dr. Strong graduated from St. Lawrence University with a B.A. in History in 1957. He obtained a Master's Degree in 1959, and a Ph.D in social science from Syracuse University in 1967. He received a National Endowment for the Humanities award in the area of archaeology in 1978 and a Fulbright award in 1998. Dr. Strong is a professor emeritus at Long Island University, where he taught from 1965 until 1998. Dr. Strong has written three books about the Indians of Long Island and approximately 25-30 peer-reviewed articles in journals, and has presented more than thirty papers at professional conferences. This is the first lawsuit in which Dr. Strong has testified as an expert. (9/3 Tr. at 6-14.) Dr. Strong's research is in ethnohistory, an interdisciplinary field that emerged in the latter half of the last century. Ethnohistory combines models of analysis and strategies of research from anthropology, history and archaeology, and is commonly used when studying cultures without written records. (9/3 Tr. at 14.) Dr. Strong considers his area of expertise to be 17th century colonial history with an emphasis on contact between Native Americans and Europeans. (9/3 Tr. at 16.)

The court then heard testimony from defendants' fact witness, Chief Harry Wallace. Chief Wallace is an Unkechauge member and current Unkechauge Chief, and has lived on the Unkechauge reservation at Poospatuck continuously since 1991. (9/3 Tr. at 81, 129-130.) Chief Wallace earned his Bachelor's Degree from Dartmouth College in 1975, where he majored in American history and studied Native American issues. He earned a J.D. cum laude from New York Law School, where he wrote his thesis on Indian sovereignty and Eastern United States Indian land claims. (9/4 Tr. at 65-67.)

Additionally, the court heard testimony from plaintiff's experts, Joyce Davis and James Lynch. Ms. Davis was qualified as an expert in the field of genealogy, which she defined as the "study of families generationally." (9/4 Tr. at 186, 239-240.) Ms. Davis received her Associate's Degree in Language Arts in 1971 from West Valley College in Campbell, California and completed her Bachelor's Degree in Native American Studies in 1995 at George Mason University in Fairfax, Virginia. Ms. Davis testified that she took some genealogy "classes through extension" while she was in college and through "historical agencies." (9/4 Tr. at 186-188.) From 1993 until 1996, Ms. Davis was an Assistant Genealogical Researcher at the Bureau of Indian Affairs ("BIA") at the Department of Interior. (9/4 Tr. at 189.) Upon leaving the BIA, Ms. Davis has done independent genealogy consulting projects for tribes, among other jobs unrelated to genealogy. She has a genealogy consulting business in Net Lake, Minnesota. (9/4 Tr. at 185.)

Mr. Lynch was qualified as an expert in the field of ethnohistory. (9/8 Tr. at 55.) Mr. Lynch has a Bachelor's Degree in anthropology, sociology and religious studies, and a Master's Degree in anthropology and ethnohistory from Wesleyan University. Mr. Lynch completed all of the requirements for a Ph.D, except for his dissertation. (9/8 Tr. at 3-4.)*fn2 His studies focused primarily on ethnohistory and American Indians of the northeast, southwest, and subartic Inuit groups. (9/8 Tr. at 5-6.) Mr. Lynch has published several articles for presentations, one of which was in a peer reviewed journal. He also published two books, one about Connecticut land transactions with Indian tribes and one about an Indian community in Connecticut. (9/8 Tr. at 11-13.) Mr. Lynch has been self-employed since 1999, and owns his own company, Historical Consulting Research, LLC. (9/8 Tr. at 14.) When asked to describe his research methodology for reviewing historical documents, Mr. Lynch responded, "I believe if there's no evidence to prove a point, the point is not proven." (9/8 Tr. at 47.) Mr. Lynch's research methodology has never been tested by a peer-review process in academia, but he testified that his work "is under strict review by the federal government." (9/8 Tr. at 51-52.)

Mr. Lynch testified that his consulting for retained clients does not involve academic scholarship. He has previously testified as an expert witness in ten other matters involving federal recognition of Indian tribes by the United States Department of the Interior, Bureau of Indian Affairs ("BIA"), pursuant to 25 C.F.R. § 83.7. Mr. Lynch found adversely to the tribe's federal recognition in nine matters in which he was retained by clients opposing tribal recognition. (9/8 Tr. at 37-41.) In the one matter in which Mr. Lynch found in favor of federal tribal recognition, he was retained by a client that supported tribal recognition. (9/8 Tr. at 40-41.)

On the basis of the testimony of these witnesses, the expert reports and other joint exhibits admitted into evidence herein, the court summarizes the evidence before it as follows.

A. Body of Indians of the Same or Similar Race

The court heard evidence from all four witnesses about the first Montoya criterion for tribal determination: "of the same or similar race." The parties' experts dispute the definition of "race" as used by Justice Brown in Montoya's "same or similar race" criterion. Defendants' expert, Dr. Strong, testified that Justice Brown used the "conventional understanding of race of 1900: Caucasoid, Mongoloid, Negroid, Australoid, etc." (9/3 Tr. at 20.) According to Dr. Strong, Justice Brown was "referring to a body of Indians of diverse ancestry . . . [of the] same or similar race." (9/3 Tr. at 20.) The experts relied on genealogy, historical documentation of race relations and interactions between Indians and the first Europeans, and the geographic location of the Unkechauge. Dr. Strong concluded that the Unkechauge is a group of people of the same or similar race. (9/3 Tr. at 21-22.) Mr. Lynch applied a sociological approach to race, under which individuals of the same or similar race are those "who claim descent from an individual or from a kinship group" (9/8 Tr. at 64), and concluded that those claiming to be Unkechauge were not of the same or similar race. (9/8 Tr. at 70.)

The Unkechauge was a non-literate culture at the first contact with Europeans, and, thus, did not have archives or records that one would find in a literate culture. (9/3 Tr. at 15.) Additionally, many tribal documents were destroyed by a fire in the Unkechauge church established in 1750, on what is known as the Unkechauge reservation at Poospatuck. (9/4 Tr. at 87-89; Ex. 213.) Therefore, in light of the unavailability of written records, Dr. Strong based his opinion that the Unkechauge is a group of Indians of the "same or similar race" in part on evidence identifying the Unkechauge as a distinct Indian group throughout the centuries and genealogical evidence of the Unkechauge at Poospatuck.

Dr. Strong cited archaeological data from the southern coastline area of what is now Brookhaven, Long Island, records after 1640 from colonial New York and the Town of Brookhaven, court records during the 19th and 20th centuries, family records of the two prominent families that dominated the southern half of Brookhaven, the William Smith family and the William Floyd family, accounts by visitors to the Poospatuck throughout history and newspaper clippings (Exs. 1, 3-364), in which specific Unkechauge individuals, leaders and families appear. For example, the evidence includes a document from the Town of Brookhaven dated 1655, in which an Unkechauge headman named Mahew first appears with Sachem (Chief) Warawakmy and other village headmen, allied through political and kinship connections, to convey land that includes the northern half of present-day Brookhaven. (Ex. 1 at 21; Exs. 7, 8.)*fn3 Dr. Strong also identified Unkechauge individuals and groups in documents from the 1660s and 1690s involving Unkechauge Sachem Tobacus who negotiated whaling, fishing and land agreements and sought protection from the colonial government (Ex. 1 at 27-36; Ex. 9B; Ex. 10-11; Ex. 15; Ex. 19; Ex. 22), and documents dated July 1700 in which colonist William Tangier Smith conveyed 175 acres of land, previously conveyed to Smith by the Unkechauge Sachem Tobacus, to eleven representatives of the Unkechauge Indians and their children in posterity (the "1700 conveyance"). (9/3 Tr. at 42-46; Ex. 61, 62.) Included in the 1700 conveyance is the 50 acre plot along Poospatuck creek "where the Unkechaug[e] settlement had been in prehistoric times." (Ex. 1 at 46.)

Dr. Strong also noted the efforts in the 1740s of Scottish Missionary Azariah Horton to proselytize the Unkechauge (Ex. 1 at 49-55), and then Secretary of State Thomas Jefferson's 1791 visit to the Unkechauge at Poospatuck and his compilation of an Unkechauge vocabulary from two elderly Unkechauge women and another young Unkechauge woman who assisted with translation. (Ex. 1 at 63-66.) Contrary to Jefferson's description of the women as the last "three of this tribe now who speak it's [sic] language" (Ex. 72 at 470), Dr. Strong noted that the Unkechauge language was still being spoken in 1875 when Henry Clinton visited Poospatuck and recorded two men who provided him with Unkechauge words. (Ex. 1 at 65.) Mr. Lynch also acknowledged Clinton's 1875 visit to Poospatuck in his expert report. (Ex. 301 at 52.)

Other examples that the Unkechauge has been recognized as a distinct group include the state's establishment of an Indian school at Poospatuck in 1875 (Ex 1. at 79-81) that resulted from an 1874 petition on which the names listed can be connected back and forward to Unkechauge members (9/3 Tr. at 75), the Poospatuck's appearance on a Department of the Interior list of "Indian Population of the United States" in 1915 (Ex. 130 at 66), Unkechauge children's admission to local public schools as New York State Indians in 1954 (Ex. 170), the publication of reports about Poospatuck affairs in the 1960s through the present (see, e.g., 177, 183, 194, 223), and an exhaustive hearing in New York Surrogate's Court to determine the blood rights of certain Unkechauge in 1982 (Ex. 2).

Dr. Strong testified that the present-day Unkechauge is the ancestor of the racially distinct group identified in the above-mentioned documents based on the Unkechauge's migration and language patterns as well as genealogy. The Unkechauge was part of a large North American coastal group of Indians that spoke Algonquin root languages. Thus, the Unkechuage, Shinnecock and other tribes spoke separate Algonquin root languages, analogous to separate French, Portuguese, and Spanish languages sharing a common Latin root. (9/3 Tr. at 15.) Dr. Strong examined the settlement patterns of Algonquin speaking peoples on Long Island, a common research model used by ethnohistorians to predict where a group has a settlement. The Algonquin peoples usually settled along creek beds, fresh water streams and salt water because of the inter-stasis of two ecozones and access to shellfish, fish, fowl, marine mammals and woodland plants and game. (9/3 Tr. at 15-16.) According to Dr. Strong, the Poospatuck settlement "fit the [settlement pattern] perfectly." (9/3 Tr. at 16, Ex. 1 at 2-3.) The fact that the Unkechauge never migrated out of its present location led Dr. Strong "to conclude that [the present day Unkechauge is] the same group of people." (9/3 Tr. at 24.) Dr. Strong's report states that "[t]he fifty acre plot along the bank of Poospatuck creek was undoubtedly where the Unkechaug[e] settlement had been in prehistoric times. The location fits with the archaeological models for coastal Algonquin villages," and is the current location of the Unkechauge reservation. (Ex. 1 at 46; Ex. 46.) Dr. Strong notes that historian Osborn Shaw has also concluded that the Indians at Poospatuck in 1949 were "all descended from the [Unkechauge] named in the 1700 [conveyance]." (Ex. 1 at 50, 129 (citing Shaw, Osborn 1949 "The Town of Brookhaven," 249-302, Lewis Historical Publishing Co.))

Additionally, Dr. Strong testified that, based on a learned treatise, The New Deal in American Indian Tribalism, by Graham Taylor (Ex. 357), intermixing among North American Indian tribes was "widespread" by the 1930s, noting, for example, that in two Chippewa tribes, 87%-97% of the members were of mixed blood. Indeed, the exhibit indicates that on every major reservation listed there are Indians of mixed blood. (9/3 Tr. at 27; Ex. 357 at 153.) Dr. Strong testified that, even on first contact between the Indians and Europeans, "it was not uncommon . . . for Indian women to be impregnated by white men." (9/3 Tr. at 23.) According to Dr. Strong, the children of Indian women and European men "would of course not be accepted in white society, but they would live with their mother [in an Indian village]." (9/3 Tr. at 23; Ex. 1 at 67.)

Dr. Strong found the Unkechauge's intermixing consistent with patterns of race relations between Europeans and Indians on the East Coast. Based upon his review of historical records, Dr. Strong acknowledged intermixing between the Unkechauge and people of other races from the beginning of the Unkechauge's contact with other groups, including the English in 1640 and African-Americans. (9/3 Tr. at 23-28.) As a result, children of Unkechauge mothers and European fathers were incorporated into the Unkechauge community since early contact with the Europeans. (9/3 Tr. at 23.) Similarly, the Unkechauge absorbed freed African-American slaves and children born from intermixing of Unkechauge and African-Americans. (9/3 Tr. at 26, 191.) Dr. Strong testified that the historical interaction between the Unkechauge and Europeans and African Americans resulted in a slowly changing biological make-up of the Unkechauge, as children of mixed parentage were absorbed into the tribe, but that did not destroy the Unkechauge people or culture. (9/3 Tr. at 25-28.)

To the contrary, Mr. Lynch disputed that the documents cited by Dr. Strong established that the Unkechauge was a people of "the same or similar race." Rather, according to Mr. Lynch, the documents show racial intermixing among the Unkechauge and the resulting decline of the Unkechauge population and race. (See, e.g., 9/8 Tr. at 10, 71, 162, 166.) Mr. Lynch concluded that the Unkechauge has been so altered as a result of its contact with other groups that it has ceased being a group "of the same or similar race." (9/8 Tr. at 120-121, 166.) Relying on the sociological approach to race, under which individuals of the same or similar race are those "who claim descent from an individual or from a kinship group" (9/8 Tr. at 64), Mr. Lynch concluded that the Unkechauge is not of the "same or similar race" because it is comprised of "five different racial groups as defined by Montoya. . . . Poospatuck, . . . Shinnecock, . . . Montauk, . . . Anglo-American, and . . . African American." (9/8 Tr. at 70-71.) To satisfy Montoya, Mr. Lynch testified that the Unkechauge would have to establish that, at least through 1800, its members descended from one of the eleven Unkechauge individuals in the 1700 conveyance. (9/8 Tr. at 266-267.) A portion of land from the 1700 conveyance was subsequently conveyed by Sarah Solomon in 1791 to William Floyd; Mr. Lynch found no evidence that Solomon was associated with the Unkechauge. (9/8 Tr. at 267.) This led to Mr. Lynch's conclusion that Solomon was the last person at Poospatuck and, even assuming that Solomon had genealogical ties to the eleven individuals named in the 1700 conveyance's deed, the lineage to the eleven individuals ended with her. (9/8 Tr. at 271-272.) Additionally, Mr. Lynch's report stated that by 1800, the Unkechauge community at Poospatuck was tri-racial and a decrease in the population had occurred. (Ex. 301 at 44-46.) Mr. Lynch relied on an account from 1883 that stated, in part, "[t]here was never any tribe of Poospatuck Indians. A few families of the old Unkechauge Indians were given [illegible] fifty acres at Poospatuck. They are much mixed with the Negroes and probably not more than three could be presented who have the Indian features." (9/8 Tr. at 129.) He concluded that the individuals currently residing at Poospatuck are not of the same or similar race. (9/8 Tr. at 70, 129, 166.)

Contradicting Mr. Lynch's testimony that there was scant evidence of Unkechauge descendants at Poospatuck after 1800, Dr. Strong highlighted a school petition by the Unkechauge from 1874 (Ex. 88; 9/3 Tr. at 75-79, 118-119), a court decision, Dana v. Maynes, (Suffolk County, New York, Mar. 10, 1936), in 1936 (Ex. 149; 9/3 Tr. at 87-98 ), and another court decision, In Re Treadwell, 820 N.Y.S.2d 846 (N.Y. Sup. Ct. 1983), in 1983 (Ex. 202; 9/3 Tr. at 130-134), in which some of the Unkechauge families at Poospatuck, including the Cuffees, Davises, Langhornes, Treadwells and Mayneses were identified. (9/3 Tr. at 130-134; Ex. 1 at 110 ; Ex. 202.) Dr. Strong discussed the Dana v. Maynes decision from 1936 in which Dana filed a notice to evict two families from the Poospatuck lands, claiming that he held title to the land and that the Unkechauge families claiming to have title through inheritance were not Unkechauge. (9/3 Tr. at 87-88; Ex. 149.) However, in the 1936 Dana case, Judge Richard Hawkins concluded that the defendants had shown that they were ancestors of those named in the 1700 conveyance's deed. (9/3 Tr. at 96-97.) The Dana court determined that even though the defendants were not full-blooded Unkechauge ancestors, they were entitled to the land. (9/3 Tr. at 97.)

The evidence upon which Dr. Strong relied, linking the modern day Unkechauge to the Unkechauge of colonial times, was supplemented by testimony of Chief Wallace about his own genealogical connection to the Unkechauge of colonial times. Chief Wallace traced his genealogy to the early 1700s, back to the Davis and Cuffee lineage. (9/4 Tr. at 151-154.) Chief Wallace testified that his great-grandparents, William Davis and Virginia Hunter, were listed as "Indian" in census data and birth and death records. (9/4 151.) William Davis' grandfather, Joel Davis, was listed as "Mulatto"*fn4 on the 1865 New York census (Ex. 110 at 2) which, according to plaintiff's expert genealogist, validates the heritage of Chief Wallace and "many" others as Poospatuck. (9/3 Tr. at 189-91; 9/5 Tr. at 73-76; Ex. 311 at 19.) Joel Davis' lineage is descended from his father, Steven Cuffee (9/4 Tr. at 152.), and grandfather, Peter Cuffee, who married the daughter of Reverend Peter John, a minister who married an Unkechauge woman and moved to the Poospatuck reservation where he founded a church in 1750 and lived until his death at the age of 88. (9/4 Tr. at 152; Ex. 1 at 58-59.) Joel Davis was actually a Cuffee, whose name was changed because he lived with and worked for the Davis family as an indentured servant.*fn5 (9/3 Tr. at 118-119, 133.) In plaintiff's expert report, Mr. Lynch agrees that Reverend Peter John founded a church on the Poospatuck reservation; however, he states that Reverend Peter John was a Shinnecock and that Peter Cuffee was his grandson. Therefore, according to Mr. Lynch, Peter Cuffee was Shinnecock, not Unkechauge. (Ex. 301 at 42-44.) As explained by Dr. Strong's report, however, Peter John married an Unkechauge woman, with whom he had seven children, and their grandson was Reverend Paul Cuffee, thus establishing Unkechauge lineage through the Cuffees. (Ex. 1 at 59.)

Chief Wallace testified that the Unkechauge has a "one drop" blood quantum requirement for tribal membership, which means that any degree of Unkechauge blood would establish tribal membership. (9/4 Tr. at 172; Ex. 1 at 78.) As Dr. Strong states in his expert report, the "one drop" rule was also used by Americans in the southern slave states to determine the racial status of African Americans and later Indians, and those born of mixed parentage. (Ex. 1 at 78.) Chief Wallace explained the procedure for establishing blood right membership in the Unkechauge tribe, which was codified in the tribal customs, rules and regulations, but was in practice prior to the adoption of that document. (9/4 Tr. 89-90, Ex. 307.) The procedure for establishing blood right membership includes submitting an application, personal information and documentary proof. The application and supporting information are reviewed by the Unkechauge tribal council. (9/4 Tr. at 90-91; Ex. 307.)

Pursuant to the Unkechauge Constitution, Article 1, those residing on the Poospatuck reservation must have a hereditary blood right of the Unkechauge. (9/4 Tr. at 91.) The exception to this rule is non-blood right spouses of blood right members, who "enjoy all privileges of his or her blood rights spouse which are customary in maintaining a normal marital life. . . ." (9/4 Tr. at 91; Ex. 171 at 8.) Non-blood right spouses do not have a vote at tribal meetings and are not eligible for elected office. (9/4 Tr. at 91.) Currently, there are 200 members of the Unkechauge tribe residing at Poospatuck who are eligible to vote. (9/4 Tr. at 181.) There are additional members who do not reside at Poospatuck and are therefore not eligible to vote. (9/4 Tr. at 184.) Wallace explained that, based on his personal involvement in the case, the thirty-four blood right members deemed eligible to vote at the time of the 1983 New York State Surrogate's Court's decision in Treadwell were selected as representatives of the families residing on the Unkechauge reservation. Subsequent to the Treadwell court's decision, a person seeking tribal membership has to establish a connection to one of those thirty-four representatives. (9/4 Tr. at 181-183.)

Relying on census data, plaintiff's expert, Ms. Davis opined that the group of "people who claimed to be Poospatuck are probably not Poospatuck" and thus are not a body of Indians of the same or similar race. (9/5 Tr. at 4-5.) Ms. Davis testified on cross-examination that the value of census forms "for reaching a genealogical conclusion is to give [] an indication of who was there [at Poospatuck] and not . . . for an accurate indication of race." (9/5 Tr. at 70.) Ms. Davis further testified that the first census in the United States was conducted in 1790 (9/5 Tr. at 23), but a category for counting Indians was not provided until 1870, and census enumerators were not explicitly instructed to count Indians until 1880. (9/5 Tr. at 27.) Dr. Strong agreed with Ms. Davis, that it is difficult to extract an accurate indication of race from census reports "because, first of all, of the enumerators themselves and their cultural biases, and secondly, because the lifestyle of the working class peoples . . . who they're trying to count." (9/3 Tr. at 232.) It was common for at least one individual from a family to stay on the reservation while the other family members worked for families off of the reservation. (9/3 Tr. at 232-233.) Mr. Lynch, while acknowledging the racial biases of census enumerators in the 19th and 20th centuries, stated that racial bias would be a low factor to account for when reviewing census data from that period. (9/8 Tr. at 170.)

Ms. Davis made conclusions in her expert report based on census data. According to Ms. Davis, "the families of Joel Davis and Sabra (Waters) Davis and that of Richard Ward and his wife, Francis . . . appear to be the only families who may trace, and the only ones who have ancestry" to those named in the 1700 conveyance. (Ex. 311 at 10.) Ms. Davis further stated in her report that "If Joel Davis, from whom nearly all of today's Poospatuck descend, would have been listed as Mulatto, validity of many of the Poospatuck, including the present Chief," as Unkechauge descendents would be more certain. (Ex. 311 at 19.) However, as evidenced by the 1865 New York State census and acknowledged by Ms. Davis, Joel Davis was listed as "Mulatto." (Ex. 110 at 2; 9/5 Tr. at 73-75.)

Ms. Davis also concluded, based on the 1900 census, that the Unkechauge Edwards line died out with a certain Martha Edwards because she had no children (Ex. 311, at 28-29), and, therefore, the present-day Edwards families cannot be traced to the Poospatuck ancestry. (Ex. 311 at 28-29.) However, the 1880 census indicates that a "Martha Edwards" had four sons (Ex. 311, Tab 20), and Ms. Davis admitted that it would be reasonable to infer that the 1880 and 1900 censuses are referring to the same "Martha Edwards." (9/5 Tr. at 80.)

B. United in a Community Under One Leadership

The court also heard and admitted evidence regarding the second Montoya criterion, "united in a community under one leadership or government." Defendants' expert, Dr. Strong, referred to "anthropological models for community. Community for these people would be intersecting, extended family systems, living in geographic proximity to each other on the same land and sharing other values - attitudes towards the land, religious attitudes, language, [and] other characteristics." (9/3 Tr. at 30.) With regard to the second component of this criterion, Dr. Strong understood "under one leadership or government" to mean "the functioning of a political structure in that community." (9/3 Tr. at 30.) Dr. Strong concluded that this Montoya criterion was satisfied.

Plaintiff's expert, Mr. Lynch understood Justice Brown's reference to a "community" in Montoya to mean a "tribal community" -- "a group of people living within a concentrated area that provides their own means of self-identity." (9/8 Tr. at 68-69.) According to Mr. Lynch, the second component of this Montoya criterion, "leadership," is whether "the body politic was following the leadership in a unified way, making a concert of action." (9/8 Tr. at 69.) Mr. Lynch concluded that this Montoya criterion was not satisfied because, although the Unkechauge is a community -- "a group of individuals living within a concentrated area, from which they draw their primary social identity" -- it is not a tribal community. (9/8 Tr. at 86, 198-199, Ex. 301 at 12.) Mr. Lynch stated that "because there was no evidence [of a tribal community between 1800 through 1874] you can't say that it exists." (9/8 Tr. at 80.) According to Mr. Lynch, evidence of leadership or government would include petitions, correspondence with government officials, and records of meetings between local leadership and tribal leadership. (9/8 Tr. at 124.)

Dr. Strong relied on a variety of evidence dating from the later 1600s through the 1980s in reaching his conclusion that the second Montoya criterion of a united community under one leadership or government was satisfied. In 1665, in a meeting with Governor Richard Nicolls, the Unkechauge and Shinnecock met to establish the eastern boundary of Unkechauge land, which was entered into colonial records. Plaintiff's expert, Mr. Lynch, notes that this was "the first tacit recognition of the Unkechauge as a tribal entity by the [colonial] government of New York." (Ex. 301 at 17.) According to Dr. Strong, during a court hearing in 1667, an Unkechauge Sachem was consulted about hunting grounds on land in present-day Flanders, and Unkechauge Sachems "were often called upon to settle boundary disputes between English towns" in the New York colony. (Ex. 1 at 22-23.) As acknowledged by Mr. Lynch, in 1676, a group of Unkechuage petitioned Governor Andros regarding whaling and fishing rights. (9/8 Tr. at 224; Ex. 27; Ex. 301 at 18.) Additionally, in 1677, the Unkechauge, in concert with several other Long Island tribes, protested the exploitation of the Indians by the Europeans to Governor Andros, who implemented a policy of endorsing land sales. (Ex. 1 at 33.) Dr. Strong further testified that a series of land transactions in the 1700s between the Unkechauge and the colonists are evidence of a community with leadership. According to Dr. Strong, these transactions were entered into by certain Unkechauge individuals in their representative tribal capacities. (9/3 Tr. at 42-43, 58.)

Mr. Lynch's testimony traced the disintegration of the Unkechauge community back to land conveyances to the Europeans before 1700 and thereafter. (9/8 Tr. at 78; Ex. 301 at 30.) According to Mr. Lynch, the 1700 conveyance was a leasehold, not a fee simple conveyance. (9/8 Tr. at 96; Ex. 301 at 33.) In 1730, Nicoll Floyd acquired the leasehold rights to 100 of the 175 acres contained in the 1700 conveyance. (Ex. 301 at 34.) Mr. Lynch testified that, based on a 1755 conveyance of a portion of land contained in the 1700 conveyance, the Unkechauge community had dissolved because the 1755 conveyance was not by any of the eleven Unkechauge individuals named in the 1700 conveyance. (9/8 Tr. at 236.) Mr. Lynch concluded, therefore, that the Unkechauge was an Indian community at its inception, but "by 1800 . . . there [were] only a few speakers of the native tongue . . . no cultural practices . . . . [and] individuals were conveying land rather than it being collectively done away with." (9/8 Tr. at 77.)

Dr. Strong, however, highlighted other evidence from the late 1700s through the 1800s that the Unkechauge was perceived and functioned independently as a united community with leadership. In the 1794 Treaty of Canandaigua a/k/a the Pickering Treaty and the Treaty of Six Nations, the Six Nations Iroquois entered into a treaty with the United States that incorporated the "friends of the Six Nations." In 1995, Judge Emery Williams, Chief Justice of the Court of Appeals of the Seneca Nation, in response to a request by the Internal Revenue Service for an interpretation of the Treaty of the Six Nations and the Jay Treaty, stated that the treaties were intended to encompass the Unkechauge and all New York Indians as parties by referring to the "friends" of the Six Nations Iroquois Confederacy. Chief Justice Williams explained that many New York Indian tribes, including Long Island tribes, had sided with the British against the colonists during the Revolutionary War, noting that the Long Island tribes had signed a peace treaty with the British in 1664. The Treaty of Six Nations and Jay Treaty included all New York Indians and attempted to end hostilities and preserve territorial sovereignty of the Indian Nations. The Six Nations had always maintained political and economic relations with the Unkechauge. The Six Nations Seneca and Oneida traded wampum with the Unkechauge and provided sanctuary and protection to the Long Island tribes against colonial aggression during the Revolutionary War. Chief Justice Williams further noted that one of the principal functions of his court was to interpret through historical records and precedent the treaties entered into between the Indian Nations and the United States, and noted that the decisions of his court were given full faith and credit by federal and state courts. (9/3 Tr. at 60-62; Ex. 255.) Mr. Lynch testified that Chief Justice Williams wrongly interpreted the 1794 Treaty. (9/8 Tr. at 224-227; Ex. 255.)

Dr. Strong acknowledged that there were fewer primary sources documenting the Unkechauge tribe and leadership dating from the 1800s than from the 1700s. Dr. Strong explained that this was because land transactions formed the primary basis of documentary evidence and were fewer in the 1800s. (9/4 Tr. at 12.) Dr. Strong noted that this lack of records is consistent with North American Indian tribes generally. (9/4 Tr. at 14.) As evidence that the Unkechauge tribe was intact during the 1800s, and recognized as a united community by the Town of Brookhaven, Dr. Strong noted the efforts in 1818 of Elizabeth Woodhull, the daughter of General Nathaniel Woodhull, to acknowledge William Cooper, a Poospatuck Chief, who died in the War of 1812 aboard the U.S.S. Constitution (also known as "Old Ironsides"), and the corroboration of William Cooper's death by a Navy ship surgeon. (9/3 Tr. at 66-67, 73-75; Ex. 75.) In 1845 and 1871, journalists reported on the June Meeting at Poospatuck, an annual community religious and cultural event, which was earlier documented in 1669 records of the Rhode Island colonial assembly noting that a Niantic Sachem testified that his tribe had hosted Long Island Indians at the summer festival. (Ex. 1 at 11, 72.) Other seasonal Indian celebrations had been observed by Europeans as early as 1624 by Dutch scholar Nicholaes Van Wassenaer. (Ex. 1 at 10.) These Indian ceremonies were forced underground or celebrated as family gatherings because of prohibitions by the dominant colonial government that feared that plots against them could be planned during large Indian gatherings. (Ex. 1 at 11.)

In 1855, Unkechauge Chief William Cooper's widow, Dorthea Smith, filed for a share of the bounty that had been awarded to the crew of U.S.S. Constitution for sinking a British warship in a battle off the coast of Nova Scotia. (9/3 Tr. at 68; Ex. 75.) Dorthea Smith later married Obediah Cuffee, a deacon in the Poospatuck church in 1834. (Ex. 1 at 70.) Reverend Nathaniel Hawkins, of the Town of Brookhaven, testified at a hearing that established that Dorthea Smith was William Cooper's widow. (9/3 Tr. at 73.) Furthermore, in 1874, under the leadership of Chief Jacob Ward, the Poospatuck community petitioned the state for a school. (9/3 Tr. at 75; Ex. 301 at 50.)

Mr. Lynch discounted evidence of united community action in 1874, the Unkechauge petition to the state secretary of education, and again in 1881, an election of Unkechauge trustees, because they are "two isolated incidents within almost a hundred-year period." (9/8 Tr. at 80.) Mr. Lynch testified that, by 1800, it appeared that there were no social, cultural, or political links to the original eleven Unkechauge families named in the 1700 conveyance. (9/8 Tr. at 82-83.) Instead, individuals from other tribes and neighboring bands were infiltrating the land. Ethnic and social barriers distinguishing the Unkechauge from other bands were breaking down. (9/8 Tr. at 83, 107, 235-236.) According to Mr. Lynch, this suggests that the norms and values of the society were in flux. (9/8 Tr. at 108.) Additionally, the Unkechauge language was extinguished and social roles were changing as women were signatories to land contracts, in contravention of the male-dominated culture. (9/8 Tr. at 83, 105, 117-120, 138.) Mr. Lynch, however, acknowledged that women were generally responsible for care of the land. (9/8 Tr. at 149.) Mr. Lynch testified that land around the fifty acre Poospatuck reservation began to be conveyed by individual Indians, as opposed to collectively, apparently without community consensus or political authority. (9/8 Tr. at 109.) Furthermore, an individual of Montauk ancestry conveyed "the last of the leasehold rights" to the Floyd family, indicating a lack of Unkechauge self-identity and leadership. (9/8 Tr. at 110.) Moreover, according to Mr. Lynch, the religion of the Unkechauge people also transitioned from traditional beliefs to Christianity. (9/8 Tr. at 110-111.)

Mr. Lynch stated that "from 1830 onwards there is no evidence of a functioned political authority within the community." Ex. 301 at 44.) To further support his conclusions that the Unkechauge lacked both a united community and leadership, Mr. Lynch relied on Sarah Floyd Turner's 1850 account, replete with terms and overtones that would be considered racist by contemporary standards, of the "brawls and squabbles" and the dissolution of the Unkechauge community. Mr. Lynch testified that Sarah Turner's writing reflected acceptable biases of that time and that he accounted for the biases in reaching his conclusions. (9/8 Tr. at 126-128, 151-152; Ex. 84.)

As evidence supporting unified tribal action in the 1900s, Dr. Strong pointed to a 1935 New York Times article which reported that there was an attempt by the Department of Education to close the Unkechauge Indian school that was the subject of the Chief Jacob Ward's 1874 petition. (9/3 Tr. at 76-77; Ex. 145.) The minutes of the town meetings at Brookhaven in 1934 and 1935 indicate that members of the Unkechauge tribe, as well as individuals from outside the Unkechauge community, came forward to advocate a reversal of the State's decision to close the Unkechauge school. (9/3 Tr. at 78-82; Ex. 148.) Ultimately, the Unkechauge school was kept open. (9/3 Tr. at 84; Ex. 146.) Mr. Lynch's report quotes the 1935 Directory and Yearbook of the Public Schools, Second Supervisory District of Suffolk County's notation that "Poospatuck is a community of itself. A church, a school, a cemetery, thirteen little but comfortable homes which shelter approximately twenty-five children and twenty-five adults. . . . the church is a small building over 200 years old . . ." (Ex. 301 at 62.) Dr. Strong also pointed to the Tribal Rules, Customs, and Regulations, commonly referred to as the ...

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