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A05295 Summary:

A05295 Actions:

A05295 Committee Votes:

Committee:JUDICIARY   Chair:Lavine      
DATE:03/18/2025AYE/NAY:21/0  Action: Favorable         
Lavine
Aye
Tannousis
Aye
Weprin
Aye
Walsh
Aye
Braunstein
Aye
Brown
Aye
Steck
Aye
Mikulin
Aye
Seawright
Aye
Smith
Aye
Walker
Aye
Molitor
Aye
McMahon
Aye
Mitaynes
Aye
Rajkumar
Aye
Simon
Aye
Sayegh
Aye
Lunsford
Aye
Berger
Aye
Shimsky
Aye
Carroll
Aye

A05295 Floor Votes:

A05295 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A5295
 
SPONSOR: Schiavoni

 
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:
 
2024: A.9124/S.8550 Veto  120 of 2024
 
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.

A05295 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5295
 
                               2025-2026 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 12, 2025
                                       ___________
 
        Introduced  by  M.  of  A.  SCHIAVONI  --  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
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07499-01-5
        A. 5295                             2
 
     1  in a community under one leadership  or  government,  and  inhabiting  a
     2  particular  though  sometimes  well-defined  territory".  The Montaukett
     3  Indian Nation also met this criteria.
     4    Further,  at  the  time  of  Pharaoh  v. Benson decision, the judicial
     5  branches of state and federal governments had no authority to  determine
     6  the status of an Indian tribe. Only the U.S. Congress had such power. In
     7  1903, the U.S. Supreme Court ruled in the United States v.  Rickert, 188
     8  U.S. 432 (1903) that only Congress can determine when changes in customs
     9  are sufficient to invalidate tribal status.
    10    The  U.S.  Supreme Court also ruled in Butts v. Northern Pacific Rail-
    11  road (1911), that neither the lapse of time, allotment of a  portion  of
    12  the  tribal  lands in severalty, immigration of a majority of the tribe,
    13  nor the fact that the habits and customs of the tribe  have  changed  by
    14  intercourse with whites authorize the courts to disregard tribal status.
    15  That  same  year, the U.S.  Supreme Court again spoke to the question of
    16  judicial authority in cases involving tribal existence, holding in Tiger
    17  v. Western Investment Company, 221 U.S. 286 (1911) that  only  the  U.S.
    18  Congress had the authority to determine changes in tribal status.
    19    In  1994, the State Supreme Court, in the case of Breakers Motel, Inc.
    20  v. Sunbeach Montauk Two, Inc., subsequently described the  Pharaoh  case
    21  as being of "questionable propriety", a recognition by the State Supreme
    22  Court that the decision removing recognition and acknowledgment from the
    23  Montaukett Indian Nation was dubious.
    24    This legislature finds that in Pharaoh v. Benson, the Court improperly
    25  ignored  U.S.  Supreme  Court precedent and lacked jurisdiction to judge
    26  the status of the Montaukett Indian Nation. It is the  purpose  of  this
    27  legislation  to  reverse  this  improper and illegal result by the rein-
    28  statement of acknowledgment and recognition by the State of New York  to
    29  the Montaukett Indian Nation.
    30    §  2. Section 2 of the Indian law, as added by chapter 174 of the laws
    31  of 2013, is amended to read as follows:
    32    § 2. New York state Indian nations and tribes. The term "Indian nation
    33  or tribe" means one of the following New York state  Indian  nations  or
    34  tribes: Cayuga Nation, Oneida Nation of New York, Onondaga Nation, Poos-
    35  patuck  or Unkechauge Nation, Saint Regis Mohawk Tribe, Seneca Nation of
    36  Indians,  Shinnecock  Indian  Nation,  Tonawanda  Band  of  Seneca,  the
    37  Montaukett Indian Nation, and Tuscarora Nation.
    38    §  3.  The Indian law is amended by adding a new article 11 to read as
    39  follows:
    40                                 ARTICLE 11
    41                        THE MONTAUKETT INDIAN NATION
    42  Section 170. Reinstatement of state recognition and acknowledgment.
    43          171. Leadership of Montaukett Indian Nation; elections; terms of
    44                 office.
    45          172. Qualifications of voters.
    46          173. Qualifications for office.
    47    § 170. Reinstatement of state recognition and acknowledgment. Recogni-
    48  tion and acknowledgement of the Montaukett Indian Nation by the state of
    49  New York is hereby reinstated.
    50    § 171. Leadership of Montaukett Indian  Nation;  elections;  terms  of
    51  office.  In  accordance  with  the  tribal governance rules, customs and
    52  regulations of the Montaukett Indian Nation,  a  sovereign  nation,  the
    53  tribe  shall have a chief or sachem, three tribal trustees, and a tribal
    54  secretary. The trustees shall be elected by a majority vote by ballot of
    55  lineal members of the nation eligible to vote at an annual tribal  meet-
        A. 5295                             3

     1  ing  which  shall  be  held on the first Tuesday in April.  All officers
     2  shall hold office for a period of two years.
     3    §  172. Qualifications of voters. No person shall vote at the election
     4  provided for in section one hundred seventy-one of this  article  unless
     5  such  person  is  at  least  eighteen years of age and is certified as a
     6  lineal member of the Montaukett Indian Nation  in  accordance  with  the
     7  nation's governance rules, customs and regulations.
     8    §  173.  Qualifications  for  office.  All  officers shall qualify for
     9  office and perform their respective duties in accordance with the gover-
    10  nance rules, customs and regulations of the Montaukett Indian Nation.
    11    § 4. This act shall take effect immediately.