Much Confusion, And Few Rules, When It Comes To The Discovery Of Native American Remains

The Suffolk County medical examiner could not determine the ancestry of skeletal human remains found at a construction site on Hawthorne Road in Shinnecock Hills on August 13. County officials said it would be up to Southampton Town to conduct its own archaeological review of what was found at the site, including a glass flask.

After hearing the news, at 78, Winonah Warren—the president of the Shinnecock Nation Cultural Center and Museum Board of Directors—needed to sit down. She scratched her head in confusion over what exactly happens next.

Perhaps the state, county or town should put it in writing: If you find something while digging that might be culturally sensitive, you should do … something. Perhaps contact the local archaeological association?

“That, I think, would be the first place to go,” she said. “But they don’t seem to be part of the mix.”

That’s not the procedure the town follows. In fact, there is no procedure at all.

There are no laws on the books in Southampton Town—or East Hampton Town, for that matter when dealing with the Montauketts—on how a town should monitor archaeological discoveries, even the uncovering of Native American cultural burial sites dating back centuries.

When officials turn to federal and state law for direction, the answer can often be unclear.

“The towns act like they don’t live on ancient grounds,” said Dr. Gaynell Stone, director of the Suffolk County Archaeological Association. “We don’t care what we wipe out—that’s the story of Long Island.”

She said Long Island has always had a pro-development mindset, which has led to the destruction or displacement of burial remains and artifacts. Many times, historical properties are burned down by “mysterious fires,” she said, and bones are simply thrown away to circumvent the chance that construction would grind to a halt.

As the build-out of the South Fork continues, she said she expects more discoveries to be made.

“Developers are about making money,” Ms. Warren agreed. “And they’ll do anything to make it.”

Instead of going through the process of determining the ancestry of discovered bones, or the archaeological significance of the flask—which Shinnecock Indian Nation officials have said could signify that the remains are of a tribal leader—Southampton Town officials are considering the purchase and preservation of the property, using revenue from the Community Preservation Fund.

But that’s a move that some see as preemptive, a knee-jerk reaction on behalf of the town, and pale justice on behalf of the Shinnecock Nation and its history.

Town Supervisor Jay Schneiderman said the property owner—currently listed as KB Southampton LLC of Water Mill—has expressed interest in selling the land to the town, a necessary step for a CPF purchase. The negotiations are ongoing.

But not every developer will be willing to put the property up for sale in the first place, Mr. Schneiderman said. Meanwhile, Town Board members worry about setting a precedent for buying land any time human remains are found, without conducting a proper archaeological review for future sites.

“If CPF wasn’t available, what would be the right procedure?” Mr. Schneiderman asked in a recent interview. “We ought to have some procedure in place that deals with when remains are found on a private property. Right now, it’s up in the air.”

Mr. Schneiderman and Southampton Town officials have been discussing the need for a new law, or at least a mandated procedure to follow, since before the remains were found in August.

“This is exactly what we have been talking about for years,” Tribal Trustee Lance Gumbs said in an interview after the remains were found, “but, finally, someone is listening.”

Rebecca Genia, a Shinnecock Indian Nation representative to the Inter-tribal Historic Preservation Task Force, approached town officials in June to encourage the adoption of a new law to protect ancient burial grounds—just as she has done repeatedly since 2003. Despite multiple discoveries of skeletal human remains and artifacts over the years, nothing has happened yet.

“The town has a responsibility to sit with the nation and make these laws to protect the sacred places in our hills and other places,” Ms. Genia said this week, recalling her message at the June meeting. “Purchase, preserve or protect. We cannot have this happen anymore—it has been happening for far too long.”

There are concerns about the impact not just on the tribe’s history but on the developers and property owners as well.

“Let’s say you invest your life’s savings in buying a property, and you dig the foundation and find a skull. Do you lose out on all that money you spent because the land is now off limits?” Mr. Schneiderman asked. He said there needed to be a balance between what the developer needs and the Shinnecock Indian Nation deserves.

At a June 21 work session, Assistant Town Planning Director Janice Scherer was asked to review East Hampton’s code for how the town processes potential Montaukett burial sites, and Town Attorney Jim Burke was to check a Florida state law, both of which were revered by the tribe as “good policies,” and Mr. Schneiderman said he was going to see what Suffolk County’s policy is. The discovery in August put everything into hyperdrive.

The review of East Hampton Town’s code uncovered—nothing.

When Mr. Schneiderman was town supervisor in East Hampton in the early 2000s, the Town Board was considering stricter measures in dealing with archaeologically sensitive areas. It involved digging test holes on a property and, potentially, an excavation dig on development locations that coincide with suspected sensitive areas.

But when he left in 2003, the proposal “died on the vine” and was never adopted.

“I wanted to mirror that policy,” Mr. Schneiderman said, when considering a path forward for Southampton Town—one that East Hampton, it turns out, didn’t blaze.

“Frankly, I am surprised,” East Hampton Town Planning Director Marguerite Wolffsohn said. “Aside from offending people, without laws in place, we’ll lose a lot of history.”

There are many “who lived and died anonymously” in East Hampton, especially in an area referenced as Freetown on archaeological maps, a settlement where runaway and freed slaves, native people and poor white farmers would live out their lives. That area is now the Springs, where remains and artifacts have been known to turn up.

“Whenever human remains are found, you call the police, and they send the coroner, who makes the final judgment,” she said. “If we find remains and it turns out to be an ancient cemetery, we protect it. We look at state maps for archaeologically sensitive areas.”

That’s basically how Southampton and East Hampton towns have operated for the last two decades, but the policy has been unofficial.

In 2006, a skull was discovered in an unmarked grave site located at the former site of the St. James Hotel in Water Mill. Southampton ended up buying the land using CPF dollars—the strategy the Town Board wants to follow this year, too.

Possible Montaukett remains also were found in the Springs in recent years, Ms. Wolffsohn said; during the excavation of a horse barn in Shelter Island in 2005; and after a heavy storm at Indian Island County Park in Riverhead in 2003. During the U.S. Open in June, members of the Shinnecock Indian Nation protested the golf tournament for playing on land that’s believed to include burial sites.

At the Shinnecock Nation Cultural Center and Museum—where there are exhibits on pottery and basket weaving but nothing on glass flasks—Ms. Warren said the remains and the artifacts found nearby in Shinnecock Hills are protected by the Native American Graves Protection and Repatriation Act and should be given to the museum.

The measure requires federal agencies and institutions that receive federal funding to return Native American remains and sacred objects back to lineal descendants. It was signed into law in 1990 to preserve history, and to prevent collectors from excavating and trading unlawfully obtained cultural items from federal or tribal lands. But it does not cover state, local or privately owned property.

Ms. Warren said it was Shinnecock tradition to bury their dead with items of significance to their lives. A flask could have a religious or sacred meaning, she added. She is calling for a careful excavation of the property to preserve the burial site and to learn more about the suspected tribal leader.

Ms. Genia noted that, because of the discovery of the flask with the remains, she believed it was likely to be a tribal leader—and so she placed a staff at the site during a recent prayer ceremony.

“A staff is something that is given to signify authority. Something like this,” Ms. Warren said holding up her wooden cane. The face of the cane is carved in the shape of an eagle with green wampum beads. “It shows my status as an elder and native woman of the tribe,” she said.

But Ms. Warren said she hasn’t heard if the items will be turned over to the tribe, or the museum, anytime soon.

It’s unclear what will happen to the remains or the cultural items at this time, a county spokesperson said on Wednesday, August 22.

“If people don’t know the law—when they have unearthed or desecrated a grave site by just pushing the bones to the side or keeping the artifacts—they won’t realize it’s criminal to do this,” Ms. Warren said. “They can go to jail and pay a very hefty fine for the desecration of Native American graves.”

First offenders can get 12 months in prison and a $100,000 fine. But the law isn’t widely known and isn’t always enforced, said Dr. Stone, of the county archaeological association.

“The bones are going back to where they came from,” Ms. Genia said. “They won’t go to the museum, because that’s the way it has been done in the past.”

Mr. Schneiderman acknowledged the need for changes. For instance, one of the critiques from the Shinnecock Indian Nation was how police “mishandled” potentially ancient remains after they were discovered, part of an effort to rule out criminality. After listening to those concerns, he said, meetings between Police Chief Steven Skrynecki and the Shinnecock Indian Nation Tribal Council are being arranged to discuss cultural sensitivity.

“I want to make sure our officers have a proper cultural sensitivity training. You might not agree with their beliefs, but you have to respect their beliefs,” Mr. Schneiderman said. “Also, people need to be aware of what the expectations are when the police are called.”

“This has happened time and again,” New York Assemblyman Fred W. Thiele Jr. said. “The town always tries to appease everyone—and most times it turns out the remains are Native American.”

Mr. Thiele said Southampton Town should better enforce state laws that are already on the books.

New York adopted a law in the early 1900s that makes it illegal to tamper with ancient grounds that are off reservation land, but the measure may have fallen into desuetude, a legal state of disuse. In fact, New York is one of only four states that does not have any clear, individual protections in place for graves found on private land.

What the state does lean on is the State Environmental Quality Review Act, or SEQRA. “Under SEQRA, whenever there is a project—a site plan or subdivision, or change of zone, or any action that is being taken—local governments have to comply with environmental, archaeological and cultural review process,” Mr. Thiele said. “It’s the first line of defense.”

In addition to SEQRA, both Southampton and East Hampton towns have language in their codes that targets “any subdivision or site plan, which directly or indirectly may degrade, despoil or eliminate one or more of the natural or cultural features,” including “paleontological and archaeological remains,” “historic buildings and sites,” and “features which are an important part of the town’s heritage.”

Mr. Thiele said the State Office of Parks, Recreation and Historic Preservation has issued policies with recommendations for local governments to follow using the office’s resources and maps to determine if the area is archaeologically sensitive.

“The policy and resources are only good if you use them,” Mr. Thiele said, acknowledging that the resources used for the SEQRA determination for the Hawthorne Road project wasn’t enough.

“The question is how hard a look was taken under SEQRA when this land was given its approvals. My experience has been, over the better part of 40 years of being either municipal attorney or an elected official, local governments often don’t take a hard look when it comes to these resources, and that’s how these situations happen.”

Mr. Thiele said he’d consider state legislation that would strictly enforce archaeological review. “But [Southampton and East Hampton towns] don’t have to look to the state for guidance,” he added. “The fact of the matter is, local governments have that authority now. If local governments are not willing to use that authority, or aren’t meeting their responsibility under SEQRA, should the state step in and set those rules themselves if the towns aren’t going to do it? They could have done it 10, 20, 30 years ago.”

This not the first time state legislation has been mulled. State Assemblyman Steve Englebright of Setauket has had a bill on the table since 2007 that sought to protect “unmarked burial sites,” and it’s very similar to the 2012 Florida state statute that Southampton Town Attorney James Burke was reviewing for Mr. Schneiderman.

The procedure would be that after the discovery of a burial site, the medical examiner would be called to verify the age of the remains, which would be reviewed alongside the burial site by a state-appointed archaeologist to determine the ancestry. The process would be administered by a newly created Native American burial site review committee.

Anyone who defaces or destroys a burial site or attempts to sell artifacts could serve up to one year in prison and pay several thousands of dollars in fines. Burial sites are to be “left undisturbed.”

“I don’t think we should sanitize a piece of land forever, but there are strategies out there for, first and foremost, being respectful to the Shinnecock Nation and protecting a landowner who made an investment in developing the property,” Southampton Town Attorney James M. Burke said. He added that there might be a way for the town to re-create something like the 2012 Florida state statute locally.

For Meesha Johnson, it may be the responsibility of the newly assembled Suffolk County Native American Advisory Board to come up with a plan at its first public session in September.

As the Shinnecock Indian Nation representative on the board, Ms. Johnson said it might behoove the board to form a second committee, like the one Mr. Englebright had proposed, to monitor burial sites.

“I believe one of the responsibilities of the advisory board could be to start a process that, whenever there are skeletal remains, we initiate the policy and the protocol to address the problem and accurately follow federal law,” Ms. Johnson said.

The Shinnecock Nation is a federally and state recognized tribe, and thus it benefits from the Native American Graves Protection and Repatriation Act. The Unkechaugs are recognized only by the state and does not benefit from the federal law, and the Montauketts are not recognized at all.

“We have rights to our indigenous remains, and because we have a museum, we would need a member of our tribe to acquire those remains and artifacts,” Ms. Johnson said. Another priority of the board would be to get the other tribes recognized by all levels of government to get those essential protections.

“Our ancestors are fighting for us from the grave and reminding us that this land was home to people most of Suffolk County has completely forgotten about.”