S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6721
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                                May 5, 2023
                                ___________
 
 Introduced  by  Sen. PALUMBO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations
 
 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:
 
   Section 1. Legislative findings. The Montaukett  Indian  Nation  seeks
 reinstatement  of its recognition and acknowledgment by the state of New
 York. Such recognition and acknowledgment 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.  Veri-
 fied 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11003-03-3
              

 S. 6721                             2
 
 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
 branches 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
 intercourse 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.
   §  2. Section 2 of the Indian law, as added by chapter 174 of the laws
 of 2013, is amended to read as follows:
   § 2. New York state Indian nations and tribes. The term "Indian nation
 or tribe" means one of the following New York state  Indian  nations  or
 tribes: Cayuga Nation, Oneida Nation of New York, Onondaga Nation, Poos-
 patuck  or Unkechauge Nation, Saint Regis Mohawk Tribe, Seneca Nation of
 Indians,  Shinnecock  Indian  Nation,  Tonawanda  Band  of  Seneca,  THE
 MONTAUKETT INDIAN NATION, and Tuscarora Nation.
   §  3.  The Indian law is amended by adding a new article 11 to read as
 follows:
                                ARTICLE 11
                       THE MONTAUKETT INDIAN NATION
 SECTION 170. REINSTATEMENT OF STATE RECOGNITION AND ACKNOWLEDGMENT.
         171. LEADERSHIP OF MONTAUKETT INDIAN NATION; ELECTIONS; TERMS OF
                OFFICE.
         172. QUALIFICATIONS OF VOTERS.
         173. QUALIFICATIONS FOR OFFICE.
   § 170. REINSTATEMENT OF STATE RECOGNITION AND ACKNOWLEDGMENT. RECOGNI-
 TION AND ACKNOWLEDGEMENT OF THE MONTAUKETT INDIAN NATION BY THE STATE OF
 NEW YORK IS HEREBY REINSTATED.
   § 171. LEADERSHIP OF MONTAUKETT INDIAN  NATION;  ELECTIONS;  TERMS  OF
 OFFICE.  IN  ACCORDANCE  WITH  THE  TRIBAL GOVERNANCE RULES, CUSTOMS AND
 REGULATIONS OF THE MONTAUKETT INDIAN NATION,  A  SOVEREIGN  NATION,  THE
 TRIBE  SHALL HAVE A CHIEF OR SACHEM, THREE TRIBAL TRUSTEES, AND A TRIBAL
 SECRETARY. THE TRUSTEES SHALL BE ELECTED BY A MAJORITY VOTE BY BALLOT OF
 LINEAL MEMBERS OF THE NATION ELIGIBLE TO VOTE AT AN ANNUAL TRIBAL  MEET-
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 ING  WHICH  SHALL  BE  HELD ON THE FIRST TUESDAY IN APRIL.  ALL OFFICERS
 SHALL HOLD OFFICE FOR A PERIOD OF TWO YEARS.
   §  172. QUALIFICATIONS OF VOTERS. NO PERSON SHALL VOTE AT THE ELECTION
 PROVIDED FOR IN SECTION ONE HUNDRED SEVENTY-ONE OF THIS  ARTICLE  UNLESS
 SUCH  PERSON  IS  AT  LEAST  EIGHTEEN YEARS OF AGE AND IS CERTIFIED AS A
 LINEAL MEMBER OF THE MONTAUKETT INDIAN NATION  IN  ACCORDANCE  WITH  THE
 NATION'S GOVERNANCE RULES, CUSTOMS AND REGULATIONS.
   §  173.  QUALIFICATIONS  FOR  OFFICE.  ALL  OFFICERS SHALL QUALIFY FOR
 OFFICE AND PERFORM THEIR RESPECTIVE DUTIES IN ACCORDANCE WITH THE GOVER-
 NANCE RULES, CUSTOMS AND REGULATIONS OF THE MONTAUKETT INDIAN NATION.
   § 4. This act shall take effect immediately.