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APRIL 19, 2001

A group of individuals who may not be Native American have a valid First Amendment right to protest development of a site they consider sacred, the 2nd Circuit Court of Appeals ruled on Tuesday.

Reversing in part a lower court decision, a three-judge panel said the Western Mohegan Tribe and Nation of New York have a right to challenge the state's development plans for the southern part of Schodack Island. The lower court had ruled the group didn't have a valid claim because they couldn't show they are Native American.

But the Western Mohegan Tribe believes its ancestors are buried on the island. While the case was in the lower court, a state archaeologist questioned the claim and said the area is traditional Mohican or Mahican territory. The historic Mohegan Tribe is different, he said.

Still, the Western Mohegan group has been conducting ceremonies on the site. It is unclear for how long, since the State claims the island up until recently was accessible only by boat or by trespassing over private land on the northern part of the island.

The state has now built a bridge to the Island and wants to develop a 40-acre section into a recreation area, charge vehicles an entrance fee, and require permits for gatherings of 25 or more. The Stockbridge-Munsee Mohican Tribe of Wisconsin, federally-recognized, endorsed the plan in 1998.

The Western Mohegan Tribe protested. They brought a number of actions against New York, including violation of the Native American Graves and Repatriation Act. All were dismissed by a federal court and the tribe appealed, dropping the NAGPRA claim.

The 2nd Circuit on Tuesday upheld the ruling but said the First Amendment claim was dismissed on erroneous grounds. It has sent the case back to federal court for consideration of violation of the Western Mohegan's freedom of religious claims.

Get the Case:
W. MOHEGAN TRIBE AND NATION v. STATE OF NEW YORK, No 00-7766 (2d Cir. April 17, 2001)