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Kevin Schlosser Featured In Newsday Article, "Appellate Court weighs in on Poospatuck gas dispute"

Mar 10, 2021Litigation & Dispute Resolution
In a potential blow to one of two low-priced gas stations on the Poospatuck Indian reservation, the state Appellate Division has upheld the Unkechaug Indian Nation’s sovereign right to determine whether blood-right members can possess land on the Mastic reservation after the tribe voted that station’s owner "undesirable." The two gas station/convenience stores operate next to each other on waterfront land on the 55-acre reservation, where the introduction of price-competitive gas has at times overheated. In 2019, while the initial state Supreme Court case was wrapping up, tempers flared after the nation attempted to blockade Fast Gas based on a judicial finding. Tribe member Danielle Treadwell and her backers filed the appeal last year seeking to overturn a lower-court ruling that found the nation had not given up its sovereign authority to declare her undesirable, even though the tribe had temporarily waived its sovereign immunity in bringing the original court case against her. The tribe in court papers has argued Treadwell's Fast Gas station operated unsafely, a charge her lawyers have denied, and the undesirable status linked to the association with off-reservation entities who finance it. Gasoline at the stations can be lower because of certain tax exemptions. On Monday regular gasoline sold for $2.39 at both stations. Once the tribe voted in September 2019 that Treadwell was undesirable and "issued the tribal resolution and directives based upon the membership’s vote, the Nation, pursuant to its own Tribal Rules, created a new and independent basis, under its sovereign authority, for excluding Danielle from the disputed portion of the subject property," the Appellate Division ruling states. The decision affirms the state-recognized tribe’s sovereign right to settle its own land determinations which was tested during a contentious court case and counterclaim over Treadwell’s claim to ownership of land that houses the newly built Fast Gas/Smokes R Us shop. The tribe in 2018 had filed suit disputing Treadwell’s claim to the land on which the station sits. Fast Gas opened in 2019 next door to Montauk Native Gas, operated by Andre Hardy, who was countersued by Treadwell, in a claim that separately disputed his title to part of the land where his station sits. The nation says the properties have long been under the possession of tribal member Curtis Treadwell, a relative of Hardy and Danielle Treadwell. In arguing to affirm its right to declare Treadwell undesirable, the tribe in its appellate brief said, "Plain and simple, this case boils down at its core to an unmitigated greedy attempted land grab by unscrupulous, trespassing non-Indian outsiders who have used [Danielle Treadwell] as a pawn to exploit the tax-exempt protections afforded to state-recognized Indian Nations by trying to operate a smoke shop and gas station within the Nation’s Reservation without its authority or consent." David Besso, an attorney for Danielle Treadwell, argued while the appellate-court ruling "did say the tribe didn’t give up sovereignty," it "ultimately didn’t say anything about" her claim to the land, which he argued she will continue to litigate to keep. He argued the tribe declared his client undesirable "under the wrong section of their bylaws," and that the nation "can’t take her property without due process. "There’s been no enforcement action at the present time," he said of any attempt by the tribe to shutter the Fast Gas station. "If there is we’ll be right back in court." But Unkechaug Nation outside attorney Kevin Schlosser in an interview said the court's ruling is clear. "Two courts ruled [Danielle Treadwell] cannot challenge the sovereign act of the nation," he said. "She can’t bring a lawsuit to challenge the vote of undesirability. That’s an act of sovereignty. New York courts can’t second guess that." It’s uncertain whether Danielle Treadwell will bring her case to the Court of Appeals. Schlosser noted it’s a high bar to do so, noting that permission to do so from the higher courts is "not often granted." Schlosser said the nation is "obviously is going to take all necessary action to uphold its rights and implement its decision. The nation as a whole has determined how this property should be used and they will indeed proceed to uphold their rights….The nation has made clear it has no desire for another gas station on its reservation especially directly next door to another safely operated gas station." Danielle Treadwell didn’t return a call seeking comment. The Unkechaug Nation, in a statement, said it was "grateful that the New York Courts have recognized our sovereign authority as a Native American Indian Nation to determine how our land on our own Reservation is used and possessed and how our internal affairs are governed. We intend to make sure that our determinations are respected by all those concerned." To view article in Newsday, click here.