Provides for the reinstatement of state recognition and acknowledgement of the Montaukett Indian Nation; provides that the Montaukett Indian nation shall have a chief or sachem, three tribal trustees and a tribal secretary; provides for the qualification of voters; makes related provisions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9124
SPONSOR: Thiele TITLE OF BILL:
An act to amend the Indian law, in relation to the reinstatement of
state recognition and acknowledgement of the Montaukett Indian Nation
PURPOSE:
Relates to the reinstatement of state recognition and acknowledgement of
the Montaukett Indian Nation. It provides for the leadership of the
Montaukett Indian Nation; qualification of voters and office.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Legislative Findings
Section 2. Amends Section 2 of the Indian Law to add the Montaukett
Indian Nation to the list of New York State Indian Nations and Tribes
Section 3. Amends the Indian Law by adding a new Article 11 - "The
Montaukett Indian Nation"
Section 4. Provides for an immediate effective date
JUSTIFICATION:
The Montaukett Indian Nation seeks reinstatement of its recognition and
acknowledgment by the state of New York. Such recognition and acknowl-
edgment was improperly removed from the Montaukett Indian Nation in 1910
in the case of Pharaoh v. Benson,69 Misc. Rep. 241(Supreme, Suffolk
Co., 1910) affirmed 164 App. Div. 51, affirmed 222 N.Y. 665, when the
Montaukett Indian Nation was declared to be "extinct".
The court ruled that "the tribe has disintegrated and been absorbed into
the mass of citizens and at the time of commencement of this action
there was no tribe of Montaukett Indians". This arbitrary ruling ignored
earlier U.S. Supreme Court decisions defining Indian Nations according
to criteria under which the Montaukett Indian Nation qualified as an
existing sovereign tribe and giving Congress, rather than the courts,
power to decide the status of an Indian.
In the first of these U.S. Supreme Court decisions, United States v.
Roger, 45 U.S. 567 (1848), the court ruled that the primary criteria for
Indian identity was evidence that an Indian had to have some genealogi-
cal connection with a recognized group that had existed before the
arrival of the European white explorers, traders, and settlers. Verified
evidence demonstrates that the Montaukett Indian Nation existed prior to
the Doctrine of Discovery and, as a sovereign tribe, ruled from the end
of the Island to what is today the town of Hempstead.
Subsequently, a decade before the Montaukett decision, in Montoya v.
U.S., 180 U.S. 261 (1901), the U.S. Supreme Court further defined an
Indian tribe as "a body of Indians of the same or similar race, united
in a community under one leadership or government, and inhabiting a
particular though sometimes well-defined territory". The Montaukett
Indian Nation also met this criteria.
Further, at the time of Pharaoh v. Benson decision, the judicial branch-
es of state and federal governments had no authority to determine the
status of an Indian tribe. Only the U.S. Congress had such power. In
1903, the U.S. Supreme Court ruled in the United States v. Rickert, 188
U.S. 432 (1903) that only Congress can determine when changes in customs
are sufficient to invalidate tribal status.
The U.S. Supreme Court also ruled in Butts v. Northern Pacific Rail Road
(1911), that neither the lapse of time, allotment of a portion of the
tribal lands in severalty, immigration of a majority of the tribe, nor
the fact that the habits and customs of the tribe have changed by inter-
course with whites authorize the courts to disregard tribal status.
That same year, the U.S. Supreme Court again spoke to the question of
judicial authority in cases involving tribal existence, holding in Tiger
v. Western Investment Company, 221 U.S. 286 (1911) that only the U.S.
Congress had the authority to determine changes in tribal status.
In 1994, the State Supreme Court, in the case of Breakers Motel, Inc.
v. Sunbeach Montauk Two, Inc., subsequently described the Pharaoh case
as being of "questionable propriety", a recognition by the State Supreme
Court that the decision removing recognition and acknowledgment from the
Montaukett Indian Nation was dubious.
This legislature finds that in Pharaoh v. Benson, the Court improperly
ignored U.S. Supreme Court precedent and lacked jurisdiction to judge
the status of the Montaukett Indian Nation. It is the purpose of this
legislation to reverse this improper and illegal result by the rein
statement of acknowledgment and recognition by the State of New York to
the Montaukett Indian Nation.
LEGISLATIVE HISTORY:
2023: A.6919/S.6721 Veto 61 of 2023
2021-22: A.4069/S.6889 Veto 110 of 2022
2019-20: A.5411/S.3691
2018: A.9898/S.7770 Veto 360 of 2018
2017: A.2325/S.3006 Veto 174 of 2017
2015-16: A.202A/S.375A
2014: A.9704/S.7619
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
9124
IN ASSEMBLY
February 7, 2024
___________
Introduced by M. of A. THIELE, WALKER, SEAWRIGHT -- read once and
referred to the Committee on Judiciary
AN ACT to amend the Indian law, in relation to the reinstatement of
state recognition and acknowledgement of the Montaukett Indian Nation
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings. The Montaukett Indian Nation seeks
2 reinstatement of its recognition and acknowledgment by the state of New
3 York. Such recognition and acknowledgment was improperly removed from
4 the Montaukett Indian Nation in 1910 in the case of Pharaoh v. Benson,
5 69 Misc. Rep. 241(Supreme, Suffolk Co., 1910) affirmed 164 App. Div. 51,
6 affirmed 222 N.Y. 665, when the Montaukett Indian Nation was declared to
7 be "extinct".
8 The court ruled that "the tribe has disintegrated and been absorbed
9 into the mass of citizens and at the time of commencement of this action
10 there was no tribe of Montaukett Indians". This arbitrary ruling
11 ignored earlier U.S. Supreme Court decisions defining Indian Nations
12 according to criteria under which the Montaukett Indian Nation qualified
13 as an existing sovereign tribe and giving Congress, rather than the
14 courts, power to decide the status of an Indian.
15 In the first of these U.S. Supreme Court decisions, United States v.
16 Roger, 45 U.S. 567 (1848), the court ruled that the primary criteria for
17 Indian identity was evidence that an Indian had to have some genealogi-
18 cal connection with a recognized group that had existed before the
19 arrival of the European white explorers, traders, and settlers. Veri-
20 fied evidence demonstrates that the Montaukett Indian Nation existed
21 prior to the Doctrine of Discovery and, as a sovereign tribe, ruled from
22 the end of the Island to what is today the town of Hempstead.
23 Subsequently, a decade before the Montaukett decision, in Montoya v.
24 U.S., 180 U.S. 261 (1901), the U.S. Supreme Court further defined an
25 Indian tribe as "a body of Indians of the same or similar race, united
26 in a community under one leadership or government, and inhabiting a
27 particular though sometimes well-defined territory". The Montaukett
28 Indian Nation also met this criteria.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11003-03-3
A. 9124 2
1 Further, at the time of Pharaoh v. Benson decision, the judicial
2 branches of state and federal governments had no authority to determine
3 the status of an Indian tribe. Only the U.S. Congress had such power. In
4 1903, the U.S. Supreme Court ruled in the United States v. Rickert, 188
5 U.S. 432 (1903) that only Congress can determine when changes in customs
6 are sufficient to invalidate tribal status.
7 The U.S. Supreme Court also ruled in Butts v. Northern Pacific Rail-
8 road (1911), that neither the lapse of time, allotment of a portion of
9 the tribal lands in severalty, immigration of a majority of the tribe,
10 nor the fact that the habits and customs of the tribe have changed by
11 intercourse with whites authorize the courts to disregard tribal status.
12 That same year, the U.S. Supreme Court again spoke to the question of
13 judicial authority in cases involving tribal existence, holding in Tiger
14 v. Western Investment Company, 221 U.S. 286 (1911) that only the U.S.
15 Congress had the authority to determine changes in tribal status.
16 In 1994, the State Supreme Court, in the case of Breakers Motel, Inc.
17 v. Sunbeach Montauk Two, Inc., subsequently described the Pharaoh case
18 as being of "questionable propriety", a recognition by the State Supreme
19 Court that the decision removing recognition and acknowledgment from the
20 Montaukett Indian Nation was dubious.
21 This legislature finds that in Pharaoh v. Benson, the Court improperly
22 ignored U.S. Supreme Court precedent and lacked jurisdiction to judge
23 the status of the Montaukett Indian Nation. It is the purpose of this
24 legislation to reverse this improper and illegal result by the rein-
25 statement of acknowledgment and recognition by the State of New York to
26 the Montaukett Indian Nation.
27 § 2. Section 2 of the Indian law, as added by chapter 174 of the laws
28 of 2013, is amended to read as follows:
29 § 2. New York state Indian nations and tribes. The term "Indian nation
30 or tribe" means one of the following New York state Indian nations or
31 tribes: Cayuga Nation, Oneida Nation of New York, Onondaga Nation, Poos-
32 patuck or Unkechauge Nation, Saint Regis Mohawk Tribe, Seneca Nation of
33 Indians, Shinnecock Indian Nation, Tonawanda Band of Seneca, the
34 Montaukett Indian Nation, and Tuscarora Nation.
35 § 3. The Indian law is amended by adding a new article 11 to read as
36 follows:
37 ARTICLE 11
38 THE MONTAUKETT INDIAN NATION
39 Section 170. Reinstatement of state recognition and acknowledgment.
40 171. Leadership of Montaukett Indian Nation; elections; terms of
41 office.
42 172. Qualifications of voters.
43 173. Qualifications for office.
44 § 170. Reinstatement of state recognition and acknowledgment. Recogni-
45 tion and acknowledgement of the Montaukett Indian Nation by the state of
46 New York is hereby reinstated.
47 § 171. Leadership of Montaukett Indian Nation; elections; terms of
48 office. In accordance with the tribal governance rules, customs and
49 regulations of the Montaukett Indian Nation, a sovereign nation, the
50 tribe shall have a chief or sachem, three tribal trustees, and a tribal
51 secretary. The trustees shall be elected by a majority vote by ballot of
52 lineal members of the nation eligible to vote at an annual tribal meet-
53 ing which shall be held on the first Tuesday in April. All officers
54 shall hold office for a period of two years.
55 § 172. Qualifications of voters. No person shall vote at the election
56 provided for in section one hundred seventy-one of this article unless
A. 9124 3
1 such person is at least eighteen years of age and is certified as a
2 lineal member of the Montaukett Indian Nation in accordance with the
3 nation's governance rules, customs and regulations.
4 § 173. Qualifications for office. All officers shall qualify for
5 office and perform their respective duties in accordance with the gover-
6 nance rules, customs and regulations of the Montaukett Indian Nation.
7 § 4. This act shall take effect immediately.
