Commercial Litigation and Arbitration

Expert Evidence — Historians & Daubert

The question in State of N.Y. v. Shinnecock Indian Nation, 2007 U.S. Dist. LEXIS 80443 (E.D.N.Y. Oct. 30, 2007), was whether New York state authorities were entitled to an injunction preventing the Shinnecock Indian Nation from constructing a casino in Suffolk County. A potentially dispositive legal issue was whether aboriginal title to the property held by the Shinnecock Indian Nation at the time of first European contact in 1640 had been extinguished.

The history is as interesting as the law in this opinion. For example, Southampton was originally part of Connecticut:

In or about 1644, the "Towne of Southampton" was accepted into the jurisdiction of the Colony of Connecticut, under terms and provisions set forth in a document entitled "Ye Combynation of Southampton Wth Har[t]ford." *** Southampton, as an already-existing town, had the most liberal association with the Colony of Connecticut of all the towns and plantations under that colony's jurisdiction.... Defendants' expert witness, Katherine A. Hermes, testified that "ordinarily, when Connecticut founded towns, they were founded from scratch," but Southampton existed as a town prior to its combination with Connecticut and was permitted to keep the laws it had enacted prior to the combination so long as those laws were not in conflict with the interests of others or the laws of the United Colonies. [Citations omitted.]

This brings us to the question how historians can possibly satisfy Daubert, as codified in Fed.R.Evid. 702. District Judge Joseph F. Bianco rigorously applied the multipart test finding that each of the experts (on both sides) was sufficiently qualified; that they analyzed the appropriate data; that the methodology of each was reliable and fit — ‛the experts analyzed and considered the pertinent historical documents (including deeds, patents, confirmations, and other colonial era documents) in the context of the contemporary historical understanding“ — and that the testimony, although it bordered on legal conclusions, steered sufficiently clear to be admissible:

The Court recognizes that the issue of whether aboriginal title was extinguished is a legal question for the Court to resolve and not experts. However, in deciding that issue, the Court is required to analyze centuries-old documents and historical events. It is the Court's conclusion that the consideration of expert testimony in the form of historians and ethnohistorians clearly assists the Court as the trier of fact, at a minimum, in identifying the ancient documents and historical events that may be relevant on this issue and providing testimony about the historical context for these documents and events to ensure that the meaning of the documents and/or events are not being misunderstood due to the substantial passage of time. *** In sum, as set forth in the trial record, the Court found that each party provided a sufficient basis for the admissibility of the expert testimony under Daubert and the Court considered that testimony, not as direct testimony on the ultimate legal issue of extinguishment, but rather for a different purpose -- namely, as instructed in other cases by the Second Circuit, to assist the Court in identifying the relevant colonial era documents and understanding the historical context for those documents, so that the Court could make the legal determination on the issue of extinguishment of aboriginal title.

And the result? The inhabitants of Southampton are still relegated to flying their helicopters and private planes to the casinos in Connecticut or Atlantic City. Injunction granted.

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