Why can’t Cuomo's DOT get along with Native American tribes?

It was late November 2020. The leafless trees blocked the salt-filled wind as best they could, but there was no denying it: Winter had finally come to the sliver of land now known as Long Island, and forever home to the Shinnecock Indian Nation, a Native American tribe. The cold snaked its way around your bones. At night, a combination of a heavy-duty sleeping bag, two thick jackets, hand warmers stuffed in my gloves and my boots did all they could to keep my body temperature just high enough and my blood flowing. To willingly sleep outside in these conditions for a single night, as I did, was a practice in endurance. But to do so for a full month, as a group of Shinnecock citizens did, was a measure of just how far people are willing to go when faced with a bully – be it a state agency, a neighboring town, or a heavy-handed governor.

So often, over the course of New York’s history, the physical reminders of progress and societal advancement – dams, railroads, highways – end up representing something a little different to the Indigenous people who stewarded this continent without them for millenia: the manner in which colonizers continue to run roughshod, sometimes literally, over the land rights of North America’s original inhabitants. Two of the most visible tribe-related projects of the past decade have been either fought or delayed by the state Department of Transportation, often undercutting what the involved tribal nations say are good faith efforts to consult and negotiate with the agency.

Living as a tribal citizen in the Northeast, by default, means accepting a certain degree of faux visibility.

This isn’t an issue limited to infrastructure or the department: It reflects the state government’s insistence on standing alone atop the local political hierarchy. Also, to some, it demonstrates Gov. Andrew Cuomo’s apparent unwillingness to treat the tribal nations of this state as the sovereign entities that they are. It’s impossible, and unfair, to pin 400 years of bad faith deal-making and land dispossession on any single individual. But it’s fair to say that the Cuomo administration has not even tried to get along with New York’s first peoples.

Living as a tribal citizen in the Northeast, by default, means accepting a certain degree of faux visibility. The land is littered with clear reminders of Native existence – most prominently in the names of parks, rivers, mountains, counties, cities and entire states – yet most people living in these areas never think about the nations who preceded the formation of the United States.

For years, New York’s Department of Transportation has wanted to add a new exit ramp along I-87 near Albany International Airport. That dream took a step toward becoming a reality in 2014 when, in compliance with Section 106, the department and the Federal Highway Administration consulted with the St. Regis Mohawk and Delaware nations, and the Stockbridge-Munsee Band of Mohican Indians, a federally recognized sovereign nation now situated in northern Wisconsin after being displaced from north-central New York. The state agreed to survey the grounds for artifacts and considered installing a mural along the walls of Exit 3 depicting peoples from their communities – a physical, human reminder of who held the land before it was a highway. (According to Nathan Allison, the Stockbridge-Munsee’s tribal historic preservation officer, the state’s surveying efforts turned up tribal artifacts dating back as far as 10,000 years.)

Allison told City & State that originally the Stockbridge-Munsee did not want to pursue development of the land at all, preferring instead to leave the grounds undisturbed. But, when that proved not to be a viable option for the state, the tribal nation agreed to compromise. In 2016, after the surveys were completed, the state sent a letter to all three tribal nations committing to “include the aesthetic treatment that will reference the Native-American heritage and culture” on the wing walls on either side of the overpass.

“Projects like this, no matter how small or big they are, help bring awareness to the land that you're on,” said Heather Bruegl, the Stockbridge-Munsee director of cultural affairs. “Indigenous nations were and are still here. I’m a firm believer in the fact that you can’t even fully understand the history of the United States if you don't first understand the history of its first people.”

Everything seemed in order. The only thing left to do was build the ramp, install the mural and celebrate a newfound partnership. So, it seemed curious when the new Exit 3 ramp, a $50 million project, was deemed completed in November 2019 without the murals in place.

The opening ceremony was marked by the attendance of Gov. Andrew Cuomo, who cut the ribbon and drove Franklin Roosevelt’s 1932 Packard across the new development. By that time, the murals had been commissioned – the selected image of Stockbridge-Munsee citizens was pulled from the tribe’s community newspaper – but they were nowhere to be found on the walls or in the governor’s photo op. Instead, according to Allison and Bruegl, the department assured the Federal Highway Administration and the tribes that a separate ceremony would be held in March 2020 to unveil the murals.

Then March came and went; so did April, May and June. Still no murals.

Instead, in July, the department asked the tribal nations to consider moving the murals from the walls to a small park away from existing motorist and foot traffic.

Allison and Bruegl were stunned. “No two agencies are created equal, and some do much better than others,” Allison said of the department’s refusal to adhere to its written agreement. “But that was just a real disservice to people involved in the collaboration and consultation that had gone on since 2014.”

The tribe, forced into a corner, went public. A feature reported by the Rochester Democrat & Chronicle in December 2020 laid out the whole affair, putting pressure on the department to uphold its end of the deal. In January, after the tribes continued appealing to the federal government, the state Department of Transportation announced that the murals were going to be finally installed, which they subsequently were – nearly a year and a half after the Exit 3 ramp first opened. There was little fanfare because the installation was amid the COVID-19 pandemic fully gripping the nation. The governor did not drive by in FDR’s Packard, nor did he cut a ribbon and make a speech about the contributions that Indigenous peoples have made to the state and its lands.

When Allison and Bruegl asked the department why this was dragged out for so long, “Our contacts with New York state DOT said, ‘I’m sorry, this is beyond our control; it’s political and above us and we don’t have an answer for you,’” Allison told City & State.

In response to questions from City & State about the fractured consultation process, Department of Transportation spokesperson Glenn Blain offered the following statement: “The New York State Department of Transportation values and respects our relationships with New York’s Native Nations and Tribes. We have honored our commitment by installing engraved murals on the Northway Exit 3 flyover northbound and southbound ramps which celebrate the Capital Region’s rich Native American culture and history.”

Unlike the Stockbridge-Munsee, the Shinnecock Indian Nation on Long Island’s South Fork – which is now called the Hamptons – were not forced westward, holding their ground at the eastern end of Long Island. Also, unlike the Stockbridge-Munsee, the Shinnecock were not surprised when the department came for them.

The beef between Shinnecock and the state of New York extends much further than a single project. Dig through the archives of The New York Times and the stories start to blur together. In all of them, a Shinnecock citizen, or the nation’s tribal council, tries to establish some semblance of economic independence, only for the state to take the most aggressive action possible. In the 1980s, it was the Southampton police and the state Department of Taxation and Finance bringing the hammer down on Jonathan Smith’s cigarette stand. In 2000, it was state police violently disrupting a peaceful protest by Shinnecock citizens objecting to gaudy mansions being built atop the graves of their ancestors. This past spring, it was a District Court judge in Central Islip ruling against three Shinnecock citizens seeking to exercise their aboriginal fishing rights.

The latest iteration of this centuries-old story involves a pair of 61-foot billboards – also referred to as monuments by the Shinnecock to signify “marking our land,” in the name of a tribal leader – developed and constructed by the Shinnecock along the sides of Sunrise Highway, the state road that runs through the South Fork.

The billboards were designed with one goal in mind: to provide a steady revenue stream to a tribal community with an inordinately high poverty rate. Advertisers, recognizing the rare opportunity to get their messages and products screened to carloads of the tribe’s well-to-do Hampton neighbors, quickly lined up. But the town of Southampton was not as keen on what its officials deemed a blight on their sleepy gateway community. The town first issued a stop-work order to the tribal nation in April 2019; when construction continued, the town raised the issue with the state, roping in the Department of Transportation. By June, the department filed a lawsuit against the Shinnecock’s seven council members and the contractors hired to complete construction, citing the lack of departmental permits. The courts thus far have sided with the tribe’s land claim; rather than viewing this as an ending point, the department has instead continued to play the antagonistic role.

Tela Troge wears several hats for the Shinnecock community, COVID-19 coordinator and board member of the tribal nation’s Cannabis Regulatory Division among them. But it’s as the Shinnecock’s tribal attorney that she has encountered the Department of Transportation. Troge was among those I met at Sovereignty Camp this past fall – a month long protest established by Shinnecock citizens and allies along the two Sunrise Highway monuments. The camp stood both against the legal campaign mounted by the department and in solidarity with the tribal nation’s ongoing effort to build a steady, sustainable economic base.

Troge described the department, in her experience, as acting “highly aggressive.” The latest example, in addition to the ongoing lawsuit over the billboards, arrived in early February. The department sent a letter to the Shinnecock tribal councilors informing them of the agency’s plan to begin fining the tribal nation $2,000 every day the billboards are kept operational. As of publication, the department hasn’t attempted to collect on the fines. According to Troge, the letter was written and delivered without having first been cleared by the department’s own attorneys.

“For the DOT, without the advice of their legal counsel, to send us a letter saying they’re going to fine us $2,000 a day in the midst of a global pandemic and a community that’s suffering from poverty, horrible housing conditions and struggling to provide even the most of minimum resources of getting food to people – that’s really cruel,” Troge said.

While the Shinnecock billboards and its proposed casino are contested by the state in court, Troge said that investors, particularly those at banks, are wary of directing their funds toward any current and future projects until they are fully adjudicated. Even though she and other Shinnecock citizens take umbrage with the department’s actions, she’s not concerned in the slightest about what the ultimate outcome will be in the courts.

“You can quote me on this: New York state has zero chance of winning this case, and yet they just had the judge set a trial schedule that goes to 2023,” Troge said. “When you look at what the United States is trying to do to improve the economy by 2024, (the state is) just like, ‘OK, well, we’re going to keep the Shinnecock Nation under litigation until then.’”

Speaking for the department, Blain offered the following statement:

“The department cannot comment on the ongoing legal issues with the Shinnecock Nation as it is a matter of continuing litigation.”

Cuomo has refused to meet directly with Seneca Nation tribal leaders, while antagonizing them over casino fees and road repair work on I-90, which cuts through (illegally, the tribe is currently arguing in court) the Seneca Nation’s Cattaraugus Reservation.

While many observers have their theories, nobody truly knows why the department has been so heavy handed. Although it is technically the Department of Transportation Commissioner Marie Therese Dominguez’s sector currently feuding with the tribes, the agency’s and the wider state government’s troubled relationship with Indigenous New Yorkers long predates her appointment in 2019. Allison and Troge intimated, based on the conversations that they’ve had with department officials, that they suspected the department’s hardline positions are ultimately coming from the governor, but that is conjecture rather than fact. In response to multiple detailed inquiries for this article, the governor’s office sent the following statement from spokesperson Jordan Bennett: “The State generally has good relationships with nearby tribal nations. While occasional disputes and frustrations from both sides happen and are expected, they are always taken seriously and resolved in a way that works for all parties. The Governor has worked with tribal nations for decades including his days as HUD Secretary – where he was the first to go to an Indian nation and among other things unveiled an initiative that enabled tribal governments to benefit from more than $1 billion in annual assistance under several major HUD programs – to now. He believes in a continued partnership and respects their status.”

Some tribal leaders in New York see it very differently. “New York could arguably be said to be one of the states with the worst overall historical record of its treatment of Indigenous people,” Troge said, reflecting on the centuries of dispossession and bad faith deal-making that have led us to this moment. But when it comes to the past decade of tribes having to battle state agencies to exercise tribal sovereignty and protect their citizens, the problem isn’t history or precedent, she said. “It’s the governor's view of Indigenous people.”

Nick Martin is the Indigenous Affairs Desk editor at High Country News and a contributing editor at The New Republic. Martin is a member of the Sappony Tribe.