Personal & Confidential
22 November 2004
Page 3 of 9
That they may have free trade, as formerly. [emphasis added] The Shinnecocks had so submitted themselves under the protection of the English Crown prior to the date of the treaty. Therefore, the Shinnecocks are included in the treaty under Article 4, and enjoy the free trade guarantee provided to the Indians by Appended Article 3.
Between 1640 and 1662, the Shinnecocks had ceded territory to the English foudners of Southampton, by at least three extant land deed, which contained treaty guarantees showing submission to the protection of the English:
13 December 1640, Deed by the Shinnecocks to the original English settlers of Southampton, NY (guaranteed defense by the English, and retained farming rights on ceded (territory) (Records of the Town of Southampton, Sag Harbor: Hunt, 1874, I, pp. 12-14):
the above named English shall defend vs the sayed Indians from the unjust violence of whatever Indians shall illegally assaile vs. doe absolutely & for ever give & grant by these presents doe acknowledge ourselves, to have given & granted to the partyes above mentioned, without any fraude, guile, mentall reservation or equivocation to them & theire heires & successors for ever, all the lands, woods, waters, water courses, easements, profits & emoluments thence arisinge what soeuer,...
Memorand. Before the subscribing of this present writing it is agreed that the Indians above named shall have libertie to breake vp ground for theire vse to the westward of the creek afore mentioned on the west side of Shinecock plaine.
12 May 1659, Deed by the Shinnecocks to John Ogden (retained hunting, fishing and gathering rights on ceded territory)
(Records of the town of Southampton, I, p.162): ...And it is also agreed that we shall keepe our privilege of fishing, fowling, or gathering of berries or any other thing for our use...
10 April 1662, Deed by the Shinnecocks to Thomas Topping (guaranteed peace) (Records of the Town of Southampton, I, pp. 167-168): To have and To Hold, all the forementioned demised premises...without the lett trouble denial or molestation of us the said Weany, Anabackus, and Jackanapes...
The English right to purchase what is now Southampton from the Indians, was granted to the Southampton founders on 12 June 1639 (sic, 1640) by a patent for eight miles square on Long Island, sold by James Farrett, agent of the Earl of Stirling. The specific location was confirmed by Farrett on 7 July 1640 in a patent memorandum. (History of the Town of Southampton, pp. 263-265): It is to begin at a place westward from Shinnecock entitled the name of the place where the Indians drawe over their canoes out of the north bay over to the south side of the island, and from there to run...
Another 1640 Stirling patent for territory on Long Island provided trade restrictions with Indians, and retained the right to regulate trade with Indians: In consideration thereof it is agreed that ye trade with ye Indians shall remain to ye said Earle of Sterling to dispose of from tyme to tyme & at all tymes as best ilketh him... (Records of the Town of Southampton, I, pp. 9-12; N.Y. Col. Docs., XIV, pp. 627-628)
The Earl of Stirling in turn obtained the English rights under a 1635 patent by King Charles I. (N.Y. Col. Docs, VII, pp. 430-432).
It was common at the time for royal land patents and deeds to grant, with restrictions, right to colonial self-government.
The State of New York and the federal government are bound by the guarantee of free trade.
The State of New York and the federal government assumed the rights and obligations of the Province of New York and the Crown of England after the revolution, and the 1664 Fort Albany peace treaty guarantee of free trade has not been abrogated by any subsequent treaty or event. The parties enjoyed the fruits of the treaty, and cannot now be heard to avoid their obligations.
For example, the 1664 Fort Albany treaty was not abrogated by the independence of the United Sates from the Crown of England. See eg., The Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 644-650 (1819) (Dartmouth's 1769 charter, although granted by the Crown under the seal of Province of New Hampshire, was nonetheless binding upon the State of New Hampshire as successor, and is a contract, the obligation of which cannot be impaired by the state without violating the contract clause of the federal constitution.).
It is too clear to require the support of argument, that all contracts, and rights respecting property, remained unchanged by the revolution. The obligations then, which were created by the charter to Dartmouth College, were the same in the new, that they ahd been in the old government. Dartmouth College, 17 U.S., at 651 (Chief Justice Marshall)
The Treaty of Paris, 1783 U.S.T., which ended the Revolutionary War with the Crown of England, is silent as to Indians. Article 5 of The Treaty of Paris prohibited confiscation of property held by the English.
The Jay Treaty, 1794 U.S.T., was further to The Treaty of Paris. Article 9 provided for continuation of good property title held by British in American and Americans in Britain. Article 2 provided for free trade and commerce between Indians in Canada and the United States. Article 2, which remains in force and effect, provides:
It is agreed that it shall at all Times be free to His Majesty's Subjects, and to the Citizens of the United States, and also the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson's Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other. [emphasis added]... No Duty of Entry shall ever be levied by either Party on peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as GOods belonging bona fide to Indians. [emphasis added]
The Treaty of Gent, 1814 U.S.T., which ended the War of 1812 with the Crown of England, expressly provides that said war did not abrogate preexisting Indian rights. Article 9, which remains in force and effect, provides:
The United States of America engage to put an end immediately after the ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom they may be at war at the time of such ratification and forthwith to restore to such Tribes or Nations respectively all the possessions, rights and privileges which they have enjoyed or been entitled to in one thousand eight hundred and eleven previous to such hostilities...
The State of New York recognizes instances where it may not have the power to impose its regulations and taxes. For example, New York Tax Law, 471-b(1), provides statutory exception for imposition of New York State tobacco tax law where the state has no power to impose its law:
There is hereby imposed and shall be paid a tax on all tobacco products possessed in this state by any person for sale, except that no tax shall be imposed on tobacco products sold under such circumstances that this state is without power to impose such tax...
Additionally, the Governor of New York, George E. Pataki, expressly recognizes the state's own unique treaty obligations towards Indians which predate the present federal constitution. The New York Times quoted Mr. Pataki upon his veto on 15 November 2004 of a state tax bill which would have required enforcement of the state's cigarette and gasoline tax laws on Indian territory:
ÔOne of the important things I've strived to do is reflect the sovereignty as guaranteed by state and federal treaties, and to negotiate in good faith,' [emphasis added]
Mr. Pataki said, ÔI believe we can do this through consent, where we can reach agreement with the tribal nations.' [emphasis added] "Tax on Sales at Indian Reservations Blocked", 11/016/04, nytimes.com
Recent adverse United States Supreme Court decisions on Indian sovereignty issues commonly cited by states are distinguishable - they are not treaty cases. These cases involve non-treaty legal basis restricting state power in Indian affairs, such as the federal Indian commerce clause statutes, etc. Eg,. Milhelm Attea & Bros. Inc. v. (New York State scheme does not violate the federal Indian trader statutes, and Indian traders are not wholly immune from state regulation that is necessary to the assessment or collection of lawful state taxes. But see, p. 78, n.11, were the court states its opinion does not address the Seneca Nation's Amicus contention that the state regulations violate its treaties insofar as they tax transactions occurring on tribal lands.). These cases are not applicable where the legal basis is a treaty, as here. These cases did no extinguish rights provided by treaty.
Just as the State of New York is bound by the rights and obligations of the Fort Albany Treaty, 1664, as successor to the Province of New York, so too is the federal government as successor to the Crown of England. Peace and property ownership rights are clearly objects of the Fort Albany Treaty and the Shinnecock land deeds during the colonial period. Such peace and property ownership rights were important issues later at the time of the revolution, and were addressed by treaties and the United States Supreme Court at the time (See, prohibition against English property confiscation, Art. 5, and peace, Art. 7, Treaty of Paris; continuation of good property title held by British in America, Art. 9, The Jay Treaty; nullification of State of Virginia's property confiscation laws enacted prior to the present federal constitution as a Commonwealth during and after the revolution, Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603 (1813).
The federal Indian Gaming Regulatory Act contains provisions inconsistent with the free trade guarantee.
The federal Indian Gaming Regulatory Act, 25 U.S.C. 2701 et seq., was passed by Congress pursuant to the Indian Commerce Clause of the federal constitution.
The Act allows an Indian tribe to conduct certain gaming activities only in conformance with a valid compact between the tribe and the state in which the gaming activities are located. 25 U.S.C. 2720 (d) (1) (C).
Within the meaning of the Act, "Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians which is recognized as eligible by the Secretary for the special programs and services provided by the United States to Indians because of their status as Indians, and is recognized as possessing powers of self-government. 25 U.S.C. 2703 (5) (A), (B).
In the event that Shinnecock Nation does not fall within the definition of an "Indian tribe" as proscribed by the Act, and that fact is used against the Shinnecock Nation by the State of New York or the federal government to deny gaming, then the Act either 1.) does not apply because of the pre-existing free trade guarantee of the Fort Albany Treaty, 1664, or the ACt abrogates the free trade guarantee of the treaty in the gaming context, rendering the federal government liable for breach of treaty.
In the event an Indian gaming activity does fall within the scope of the Act, then the gaming activity is regulated by the Act, including the state compact requirements, then the Act either 1.)does not apply because of the pre-existing free trade guarantee of the Fort Albany Treaty , 1664, or the Act abrogates the free trade guarantee of the treaty in the gaming context, rendering the federal government liable for breach of the treaty.
For the reasons above, the State of New York and the federal government are bound by the Fort Albany Treaty, 1664, to guarantee free trade to Shinnecock Nation and its members. Therefore, insofar as the Indian Gaming Regulatory Act is inconsistent with the treaty, either 1.) the Act does no apply, or 2.) the Act abrogated the treaty in the gaming context, rendering the federal government liable for breach of the treaty.
Thank you for the opportunity to serve you in this matter. Very truly yours,
Moore International Law Offices, P.C.
Scott Michael Moore
Attorney at Law
[New England, I. 204] To the Govern' and Councill of Boston. Gentlemen. I have herewith sent yow a copy of a Comission from the Lde Commissioners of Prizes wherein I am empowered as one of the Sub-Comissioners for New England whilst His Majesty shall be in hostility with the Dutch. In prosecution of the trust reposed in mee as Sub-Comissioner I am oblig'd to give yow advertisement hereof, and that yow ill please to give strict order in all your ports from time to time that seizure be made of all and every Dutch ship vessell or goods belonging to the States of the United Provinces of the Netherlands their subjects or inhabitants within any of their dominions, as also if any prizes shall be brought into any of your ports by any persons comissionated thereunto by his R. H. the Duke of Yorke, that yow will please to cause the same to be preserv'd entire without imbezlement, with all their papers, bills of lading or other writinges, untill such a legal prosecution can be made as is directed by His Majesty authority to the Lde Comissioners, and given at large in their L Instructions to mee and Capt. Phillip Carteret, as Sub-Comissioners in N. England; wherein your assistance and concurrence is requisite for His Majesty service, as also that some able and fitting persons be chosen in your Colony to sitt as a Court of Admiralty when occasion presents. Be pleased also to remitt unto me Yo preceedings herein, according to the resolutions yow shall take; and if in this or any other quality I can redner myselfe serviceable to yourselves you may comand mee as Yo aff humble Servant R. Nicollis [About July]1664
Articles between Col. Cartwright and the New York Indians. [New England, I. 207] Articles made and agreed upon the 24th day of September 1664 in Fort Albany between Ohgehando, Shanarage, Soachoenighta, Sachamackas of y Maques; Anaweed Conkeeherat Tewasserany, Aschanoondah, Sachamakas of the Synicks, on the one part; and Colonell George Cartwright, in the behalf of Colonell Nicolls Governour under his Royal Highnesse the Duke of Yorke of all his territoryes in America, on the other part, as followeth, viz--
1. Imprimis. It is agreed that the Indian Princess above named and their subjects, shall have all such wares and commodities from the English for the future, as heretofore they had from the Dutch-- 2. That if any English Dutch or Indian (under the preteccon of the English) do any wrong or injury or violence to any of y said Princes or their subjects in any sort whatever, if they complaine to the Governor at NewYorke, or to the Officer in Cheife at Albany, if the person so offending can be discovered, that person shall receive condigne punishm and all due satisfaccon shall be given; and the like shall be done for all other English Plantations. 3. That if any Indian belonging to any of the Sachims aforesaid do any wrong injury or damage to the English, Dutch, or Indians under the protection of the English, if complaint be made to y Sachims and the person be discovered who did the injury, then the person so offending shall be punished and all just satisfaccon shall be given to any of His Majesty's subjects in any Colony or other English Plantacon in America. 4. The Indians at Wamping and Espachomy and all below the Manhatans, as also all those that have submitted themselves under the proteccon of His Majesty are included i these Articles of Agreement and Peace; In confirmation whereof the partyes above menconed have hereunto sett their hands the day and years above written
These Articles following wer likewise proposed by the same Indian Princess & consented to by Colonell Cartwright in behalfe of Colonell Nicolls the 25th day of September 1664.
1. That the English do not assist the three Nations of Ondiakes Pinnekooks and Pacamtekookes, who murdered one of the Princes of the Maques, when he brought ransomes & presents to them upon a treaty of peace. 2. That the English do make peace for the Indian Princess, with the Nations down the River. 3. That they may have free trade, as formerly. 4. That they may be lodged in houses, as formerly. 5. That if they be beaten by the three Nations above menconed, they may receive accommadocon from y English.
Col. Nicolls to the Secretary of State. [State Paper Office, Trade Papers. SVL 42] Fort James in New Yorke this day of October 1664.
Right Hon Since my last by Capt. Hill and Capt. Groves here is arrived Capt. Hyde, to whose more ample relation of the reducing Delaware Bay, I must referre my selfe. My instructions to Sir Rob Carr tooke the effect which was design'd, for by a distinct treaty and agreement with the