Case 157

Western Mohegan Tribe and Nation v. New York, 100 F.Supp.2d 122 (N.D.N.Y. 2000).

Plaintiffs, Western Mohegan Tribe and Nation, et al., sued the State of New York, alleging that the State's construction of a proposed State park violated the Native American Graves Protection and Repatriation Act (NAGPRA), the National Historic Preservation Act (NHPA), and the First Amendment of the Constitution. Plaintiffs sought a preliminary injunction against the State. There were no Federal defendants. The court not only denied plaintiffs' motion for the injunction, but also dismissed the case sua sponte.

Plaintiffs, a non-federally recognized tribe, contended that the site of the proposed park was of religious and cultural significance to the tribe.

The court first dismissed the NAGPRA claim. It noted that NAGPRA only applies to "Federal" and "tribal" lands. Although the Federal Government owns a nearby parcel of land, placed under the jurisdiction of the Corps of Engineers ("Corps"), such parcel is not part of the proposed park. And, even though the Corps issued a permit to defendants to allow construction activities, and gave a license to the State allowing it to be present on the Federally owned parcel, such actions did not transform the park land into "Federal" land. The court also found that there could be no feasible claim that the park area comprised "tribal" land. Finally, the court also stated that NAGPRA applied to cultural and funerary objects already possessed or under the control of a Federal agency or museum, or to those already discovered or excavated. The State had not seen any indication of Native American artifacts.

The court proceeded to dismiss NHPA claim. The court noted that local actions fell beyond the scope of NHPA. Regarding the permit issued by the Corps (who was not a defendant), the court found that it merely allowed the State access to the contiguous Federal property and did not extend Corps jurisdiction over the park site. Furthermore, even though it was a "permit," it was not legally required. Finally, in a two-sentence dicta, the court indicated that even if the permit was required, NHPA "clearly contemplates a federal funding requirement," and "[t]he Park simply is not 'funded in whole or in part under the direct or indirect jurisdiction of a Federal agency.'"

Finally, the court also dismissed the First Amendment allegation. Plaintiffs claimed that the State's proposed fees for access to the island where the park would be sited would violate their Free Exercise Rights. The court found that plaintiffs had no standing since they could not prove that they were Native Americans or descendants of the original tribe of the island where the park would be located. Accordingly, the fee imposed no cognizable injury to plaintiffs. Among other things, the court noted that plaintiffs' application for recognition as a tribe had been rejected by the Bureau of Indian Affairs "due to significant deficiencies, unverifiable statements, doctored original documents, and significant omissions in all areas required" by the regulations. The court also cited as persuasive an archeologist's affidavit stating that the Mahicans—a tribe with no cultural links to the Mohegans, and actually hostile to them—occupied the island.

Finding no jurisdiction over the NAGPRA and NHPA claims, and a lack of standing by plaintiffs regarding the First Amendment claim, the court dismissed the entire case sua sponte.

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