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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