Full opinion text
MEMORANDUM AND ORDER JOSEPH F. BIANCO, District Judge. In the above-captioned consolidated actions, plaintiffs New York State (“New York”), the New York State Racing and Wagering Board (the “Board”), the New York State Department of Environmental Conservation (the “DEC”) (collectively, the “State”), and the Town of Southampton (the “Town” or “Southampton”) (collectively, the “plaintiffs”) seek to permanently enjoin defendants, the Shinnecock Indian Nation (the “Shinnecock Nation” or the “Shinnecock Tribe” or the “Nation” or the “Tribe” or the “Shinnecocks” or the “Shin-necock” or the “Shinnecock Indians”), and its tribal officials sued in their official capacity (collectively, the “defendants”), from constructing a casino and conducting certain gaming on a parcel of non-reservation property known as “Westwoods,” which is situated in the western half of the Town in Suffolk County, New York (“Westwoods” or the “Westwoods land” or the “West-woods site” or the “Westwoods parcel”). Plaintiffs have demonstrated that the defendants’ actions and threatened actions with respect to the construction and operation of a Westwoods casino are not in compliance with New York anti-gaming laws and environmental laws, as well as the Southampton Town Code (the “Town Code”). However, because the Shinnecock Indian Nation is asserting immunity with respect to such laws, there are three main legal issues in the case: (1) whether aboriginal title to Westwoods held by the Shinnecock Indian Nation at the time of first European contact in 1640 has been extinguished; (2) whether, even if aboriginal title has not been extinguished, the Shinnecock Indian Nation is barred from asserting sovereignty at Westwoods, under the Supreme Court decision in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005), because of the disruptive consequences that the construction and operation of a casino would have on the Town and the Suffolk County, New York (“Suffolk County”) community; and (3) whether there is any legal basis to allow gambling at Westwoods in non-compliance with New York’s anti-gaming laws if the proposed casino development is not within the parameters of federal law as set forth in the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA”). This Memorandum and Order sets forth the Court’s Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. The Court conducted a lengthy and thorough bench trial, which lasted 30 days, and included over 20 witnesses, over 600 exhibits, and over 4,000 pages of transcripts. After carefully considering the evidence and the law, this Court concludes that the plaintiffs have demonstrated that they are entitled to a permanent injunction that prevents the development of a casino at Westwoods that is not in full compliance with New York and Town laws and regulations. The Court finds that there are three independent grounds for the Court’s ruling in favor of plaintiffs. First, the evidence overwhelmingly demonstrated in a plain and unambiguous manner that aboriginal title held by the Shinnecock Indian Nation to the Westwoods land was extinguished in the 17th century. More specifically, a series of colonial era documents demonstrate in clear and unequivocal language that (1) the Shinnecock Indian Nation sold land, which included Westwoods, to non-Indians in the 17th century; (2) the land was subsequently acquired by Southampton; and (3) the sovereign authority of the Province of New York confirmed and ratified the ownership of the land by the Town, including a determination by New York Provincial Governor Richard Nieolls in 1666 in which he confirmed that “all the right and interest” in the land that included Westwoods “is belonging, doth and shall belong unto the town of Southampton” and promised to defend the Town in its peaceable enjoyment of such land “[ajgainst all other claims whatsoever.” Although the defendants attempt to point to certain aspects of the historical record in an effort to cast doubt- on the meaning or validity of these transactions, the Court finds their arguments unavailing and concludes that this colonial-era extinguishment of aboriginal title to Westwoods is clear, unmistakable, and valid. Therefore, although there is no dispute that the Shinnecock Indian Nation currently owns and occupies Westwoods, the absence of current aboriginal title for the Westwoods land renders the Shinne-cock Indian Nation subject to the application of New York and Town laws in the development of a casino on such land. Second, even assuming arguendo that the Shinnecock Indian Nation has unextin-guished aboriginal title to Westwoods, their proposed casino development is barred under the Supreme Court’s decision in Sherrill because of the highly disruptive consequences the development and operation of a casino would have on the neighboring landowners, as well as the Town and the greater Suffolk County community. More specifically, based upon the evidence offered at trial, the Court concludes that the construction and operation of a casino at Westwoods would have severe disruptive consequences to the administration of governmental affairs, as well as the health, safety, and long-settled expectations of the residents of Southampton. For example, the substantial disruption to the transportation infrastructure in the Town and Suffolk County is undeniable. The evidence at trial demonstrated that the area in and around Southampton is already plagued with extremely high levels of traffic congestion in the summer months. The only rational conclusion to be drawn from the evidence is that, absent substantial infrastructure improvements (whose cost and feasibility are unknown), the addition of a casino to this already overburdened traffic system would be disastrous and undoubtedly would be highly disruptive to state and local governance and the settled expectations of landowners. In addition, the evidence demonstrated that the operation of a casino would have a multitude of other health and environmental impacts on neighboring landowners and the Town. Therefore, even if unextin-guished aboriginal title currently existed, the Shinnecock Indian Nation’s delayed assertion of sovereignty over this non-reservation land at Westwoods — after centuries of non-use of the land except for cutting timber and recreational functions — is barred by laches and other equitable principles under Sherrill. A third independent ground exists for the permanent injunction in plaintiffs’ favor. It is undisputed that the Shinnecock Indian Nation’s planned gaming facility fails to comply with applicable New York law and that 'the proposed development does not fall within the confines of IGRA, which supplanted any federal common law right of tribes to conduct the type of unregulated gaming that the Shinnecock Indian Nation seeks to operate at West-woods. The Shinnecock Indian Nation is not recognized by the federal government and Westwoods is not “Indian lands” as defined by the statute and, thus, the Shin-necock Indian Nation cannot utilize the safe-haven that IGRA provides from the otherwise applicable state anti-gaming laws. Therefore, the Shinnecock Indian Nation can only engage in gaming at Westwoods if it is in compliance with current New York gambling laws. Since the operation of a casino at Westwoods would violate New York anti-gaming laws, there is no legal basis for the Shinnecock Indian Nation to operate the casino. In terms of the requested relief, defendants argue that a permanent injunction is unwarranted because any harm from the proposed casino is speculative and not imminent. However, there is nothing speculative or remote about the project — the Shinnecock Indian Nation has a development agreement in place to build a 61,000 square foot (“sf.”) casino at Westwoods on 15 acres (which defendants expect to have a capacity to hold 900 to 1,000 gaming machines and 60 table games), it has stated its intention to build the casino without being legally bound by government regulation of any type, and it began clearing trees at Westwoods in 2003 to start the project. Plaintiffs have satisfied the requirements for permanent injunctive relief, including a showing of irreparable harm, if the defendants are not prevented from building a casino in violation of New York anti-gaming and environmental laws, and Town zoning laws and other regulations. Although the Shinnecock Indian Nation has emphasized to this Court during the trial (and the Court recognizes) the financial importance that the proposed casino has to the Shinnecock Indian Nation as it continues to face substantial economic hardship, this Court’s proper role is not to address or remedy those economic hardships, but rather to examine the evidence under applicable law to determine whether the proposed casino development is legally permissible. For the reasons outlined briefly above and in detail in the Findings of Fact and Conclusions of Law that follow, the Court concludes that plaintiffs have demonstrated in an overwhelming fashion that they are entitled to a permanent injunction preventing the development of a casino at Westwoods that is not in compliance with New York and Town laws and regulations. I. Background A. The Consolidated Actions The lawsuit commenced by the Town against the Nation and its three Trustees (03-cv-3466) (the “Town action”), has been consolidated with the lawsuit commenced by New York, the Board, and the DEC against the Nation and its Trustees, as well as the Chairman of the Shinnecock Nation Gaming Authority (03-cv-3243) (the “State action”). Plaintiffs seek declaratory relief that the construction and operation of a casino at Westwoods is illegal under both New York and local law and, as a result of such violations and threatened violations, seek to permanently enjoin such activities. The Court will briefly summarize below the pleadings filed by each of the parties. (1) The State Complaint The State complaint asserts five causes of action. The First Cause of Action alleges that any attempt by the defendants to build and operate a casino at Westwoods would violate New York anti-gaming laws and that such gaming would not be permitted under federal law (as set forth in IGRA) because, among other things, the Nation has not been recognized as a tribe by the Bureau of Indian Affairs (the “BIA”). (State Complaint, at ¶¶ 71-78.) The Second Cause of Action contends that defendants lack a Storm Water Pollution Prevention Plan (“SWPPP”) and a Notice of Intent (“NOI”) pursuant to a General State Pollutant Discharge Elimination System (“SPDES”) permit for construction and operation of a casino and, therefore, cannot legally commence construction of the casino. (Id., at ¶¶ 79-81.) The Third Cause of Action charges that, given the failure to apply for and obtain an SPDES permit under New York environmental law, defendants cannot lawfully commence construction of a casino with a wastewater treatment facility that would discharge effluent into New York waters. (Id., at ¶¶ 82-84.) The Fourth Cause of Action alleges that, because defendants failed to apply for and obtain a permit for a new well under New York environmental laws, defendants may not commence construetion of a casino with an attendant new well having a pumping capacity exceeding forty-five gallons per minute. {Id., at ¶¶ 85-87.) The Fifth Cause of Action asserts that, because the necessary environmental impact studies have not been conducted as required under the State Environment Quality Review Act (“SEQRA”), the DEC cannot issue the necessary permit to allow construction and operation of a casino facility. {Id., at ¶¶ 88-90.) The State seeks a permanent injunction and a declaratory judgment in connection with these claims. (2) The Town’s Complaint The Town also seeks declaratory relief and a permanent injunction. Specifically, the Town alleges that, in July 2003, defendants engaged in site preparation activities at Westwoods in connection with their previously-announced decision to develop a casino at that site. (Town’s Complaint, at ¶¶ 12-15.) The Town contends that these construction activities were not preceded by any application for, or the issuance of, the requisite Town permits and approvals and, thus, such activities and threatened activities violate the Town Code. {Id., at ¶ 16.) The First Cause of Action alleges that defendants violated Town Code § 330-184(1), which requires site plan approval or written permission from the Southampton Planning Board before any “regrading, clearing, tree removal or any other work in preparation of future use of a site” may take place. {Id., at ¶ 21.) According to the complaint, defendants did not apply or receive site plan approval before engaging in site preparation activities at Westwoods. {Id., at ¶ 23.) The Second Cause of Action asserts that defendants’ activities and/or threatened activities violate Town Code § 325-6(A), which is part of the Town’s wetlands protection legislation and prohibits certain construction activities in a wetland area or within 200 feet of wetland boundaries in the absence of a Town-issued wetlands permit. {Id., at ¶¶ 27-36.) In particular, it is alleged that defendants’ site preparation activities at Westwoods qualify under this provision and defendants violated it by not obtaining the requisite permit. {Id., at ¶¶ 31-34.) In short, the complaint alleges that “[defendants have refused to acknowledge, much less comply with Chapters 325 [“Wetlands”] and 330 [“Zoning”] of the Town Code, and otherwise have refused to recognize and acknowledge the Town’s authority to regulate the uses of the lands within its borders.” {Id., at ¶ 36.) (3) Defendants’ Defenses Defendants make a number of admissions in their answers to the complaints. Defendants admitted that the Tribe is not listed on the master list of federally-recognized Indian Tribes maintained by the federal government in the Federal Register. (Defs. Ans. to State’s Complaint, at ¶ 43.) With respect to the alleged illegal gaming under New York law, defendants admitted that the Nation owns Westwoods and that the Nation intends “to engage in gaming activities in a building to be constructed on a portion of the Westwoods Parcel....” {Id., at ¶¶ 46, 49.) Specifically, defendants admitted to a plan to construct a gaming facility in the summer of 2003 that would have the capacity to accommodate at least “900 to 1,000 gaming machines and 60 table games.” {Id., at ¶ 50.) Defendants also conceded that the Nation had not received an identification number issued by the Board or a license issued by the Town authorizing gaming at Westwoods, as required by New York gaming laws. {Id., at ¶¶ 53-54.) With respect to the alleged violations of New York environmental laws, defendants admitted that they have not submitted any of the documents to the DEC for an environmental impact study in order to commence construction of a gaming facility at West-woods under New York environmental laws, and that they also lacked the environmental and building permits and agreements required under Town zoning laws, Town fire code regulations, and New York environmental laws. (Id., at ¶¶ 58-59.) Although a number of defenses are raised in defendants’ answers to the complaints, their core defense is that New York and its political subdivisions, including Southampton, lack the power under the United States Constitution and federal common law to require the defendants to obtain any license, permit, or other form of approval to construct or operate a gaming facility at Westwoods. (Defs. Answer to State’s Complaint, at 13, “Third Affirmative Defense”; see also Defs. Answer to Town’s Complaint, at ¶¶ 8-9, “Third Affirmative Defense.”) II. Procedural History On June 29, 2003, the State commenced the State action in New York State Supreme Court, Suffolk County (“Suffolk County Supreme Court”) to stop construction activities at the Westwood site. On that same date, the State obtained a temporary restraining order (a “TRO”) signed by New York State Supreme Court Justice Edward D. Burke. On July 1, 2003, defendants removed the case to this Court and the matter was assigned to the Honorable Thomas C. Platt. On July 14, 2003, Southampton filed the Town action in Suffolk County Supreme Court, also seeking to enjoin construction activities, based on defendants’ alleged violation of the Town’s zoning and land use laws. On that same date, New York State Supreme Court Justice James M. Catter-son granted the Town’s application for a TRO. Thereafter, on July 15, 2003, defendants removed the action to this Court and the matter was assigned to the Honorable Thomas C. Platt. Shortly after removal of the State action, the State moved for remand. The State’s motion for remand was denied by order dated July 29, 2003. See New York v. Shinnecock Indian Nation, 274 F.Supp.2d 268, 271 (E.D.N.Y.2003). The Town also moved to remand, but later agreed to withdraw its motion when the two actions were consolidated. (See Stipulation and Order, dated December 22, 2003.) The State also moved this Court for a TRO and a preliminary injunction to halt construction of the casino. The Town joined in the State’s motion. By Memorandum and Order dated August 29, 2003, the Court granted the preliminary injunction. See New York v. Shinnecock Indian Nation, 280 F.Supp.2d 1, 10 (E.D.N.Y.2003). The Court also stayed the action for a period of eighteen months to allow the BIA to decide the Nation’s petition to the BIA for federal recognition. (Id.) Defendants appealed the August 29, 2003 Memorandum and Order, and the Second Circuit remanded the case on November 18, 2003, stating that the district court should determine whether a preliminary injunction and stay was still warranted since the BIA could not address the Nations’ petition for recognition within the eighteen months contemplated by the Court. See New York v. Shinnecock Indian Nation, No. 03-7996, at 1-2 (2d Cir. Nov. 26, 2003). Following the remand, on November 18, 2003, the Court conducted a conference in the State action in which the Town participated. At that conference, the Court lifted the stay, but continued the preliminary injunction pending a decision at trial. The Town action was also consolidated with the State action and the parties were ordered to proceed with discovery. (See Stipulation and Order, dated December 22, 2003.) The parties filed motions for summary judgment and partial summary judgment on July 21, 2005. Defendants sought to dismiss the Town and State complaints on the grounds that the Nation is an Indian Tribe and is therefore entitled to tribal sovereign immunity. Plaintiffs sought partial summary judgment permanently enjoining defendants from operating a gaming facility, alleging that defendants lack the right to engage in tribal gaming under IGRA or under federal common law, and that any gaming was subject to New York gaming and environmental laws. The Town sought partial summary judgment on the grounds that Westwoods is not “Indian country,” as defined at 18 U.S.C. § 1151, and thus is subject to state and local law, and that, in any event, the Nation no longer holds aboriginal title to Westwoods because such title was extinguished by sovereign act during the colonial era. By Memorandum and Order, dated November 7, 2005, Judge Platt denied all motions for summary judgment and partial summary judgment, except that he granted the defendants’ motion for summary judgment on the issue of whether the Nation is an Indian Tribe pursuant to the federal common law standard established in Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358, 45 L.Ed. 521 (1901) and Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 59 (2d Cir.1994). See New York v. Shinnecock Indian Nation, 400 F.Supp.2d 486, 491-92 (E.D.N.Y.2005). Judge Platt held that “[t]he cases described above, beginning with Montoya and continuing to the present, establish a federal common law standard for determining tribal existence that the Shinnecock Indian plainly satisfies.” Id. at 492. However, Judge Platt emphasized that “recognizing the Shinne-cocks as a Tribe does not end the matter. The question remains as to what use Defendants may put the Westwoods property----” Id. at 493. Judge Platt also found that the recent Supreme Court decision in Sherrill was relevant to considering “the extent of the impact of the ‘disruptive’ claims [of the defendants], the nature of the Indians’ present titles and possibly the length of the delay and the question of laches, and appropriate remedies. These are factual and legal determinations which may only be resolved at a trial.” Id. at 496. Judge Platt noted that “a remedy may also be disruptive in cases similar to the one at bar, where dispossession is not at issue and only neighboring landowners will be affected by the Indians’ claims.” Id. at 496 n. 6 (citing Sherrill, 544 U.S. at 219-20, 125 S.Ct. 1478). III. The Trial A bench trial commenced in this action before Judge Platt on October 4, 2006. On November 15, 2006, after six days of trial, the case was re-assigned to the undersigned. The bench trial resumed on December 4, 2006. On December 6, 2006, the State filed a motion for reconsideration of the denial of their motion for partial summary judgment. The Court denied the State’s request that the trial be discontinued until the reconsideration motion was fully briefed and decided. Instead, the Court decided to continue with the trial and address the legal issues raised by the motion for reconsideration at the conclusion of the trial along with the other legal issues in the case. The final witness testified on April 17, 2007. The parties submitted their proposed findings of fact and conclusions of law on May 1 and May 2, 2007, for utilization by the Court in connection with this Memorandum and Order. Summations were heard on May 9 and May 10, 2007. IV. Findings op Fact A. The Parties Plaintiff New York is a sovereign state with offices at the Capitol, in the City and County of Albany, New York. (Joint Pretrial Order Stipulation of Fact (hereinafter, “Stip.”) No. 1.) Plaintiff Board is an agency established within the Executive Branch of the government of New York, pursuant to Section 101 of the Racing, Pari-Mutuel Wagering and Breeding Law of the State of New York, and consists of three members appointed by the Governor of New York. (Stip. No. 2.) Plaintiff the DEC is an agency established within the Executive Branch of the government of New York, pursuant to New York Environmental Conservation Law article 3. (Stip. No. 3.) Plaintiff Southampton is a municipal corporation organized and existing under the laws of New York, situated within Suffolk County and having an address at 116 Hampton Road, Southampton, New York. (Stip. No. 4.) Defendant Shinnecock Indian Nation was held to be a tribe of Indians in this Court’s Memorandum and Opinion dated November 7, 2005, and has offices on the Shinnecock Reservation in Southampton (the “Shinnecock Reservation”). (Stip. No. 5.) The Nation has not been acknowledged to be an Indian tribe by the BIA. (Stip. No. 9.) The Nation does not appear in the list of “tribal entities recognized and eligible for funding and services from the [BIA] by virtue of their status as Indian Tribes,” as set forth at 70 Fed.Reg. 71,194 (Nov. 25, 2005). (Stip. No. 10.) There exists no treaty between the Nation and the United States. (Stip No. 11.) The relationship between the Nation and the government of New York (and its predecessors) predates the existence of the federal government. (Stip. No. 12.) The Nation currently occupies and is in possession of the Shinnecock Reservation, on which some members of the Nation reside. (Stip. No. 13.) The Shinnecock Reservation is generally described in the first sentence of Section 1 of Chapter 46 of the New York Laws of 1859, and does not include the property described below as Westwoods. (Stip. No. 14.) Defendant James W. Eleazer, Jr. was, at the time the complaints in these consolidated actions were filed, an elected Trustee and official of the Nation, and was sued by the State in his official capacity only. (Stip. No. 6.) By Order of this Court dated April 17, 2007, Mr. Eleazer was dismissed from this action as a defendant, and Randall King was substituted as a party defendant in the place of Mr. Eleazer. Defendant Lance A. Gumbs was, at the time the complaints in these consolidated actions filed, and is now an elected Trustee and official of the Nation, and is being sued by the State in his official capacity only. (Stip. No. 7.) Defendant Frederick C. Bess was, at the time the complaints in these consolidated actions were filed, chairman of the Shinnecock Nation Casino at Westwoods Authority, and is now an elected Trustee of the Nation, and is being sued by the State in his official capacity only. (Stip. No. 8.) By Stipulation and Order of this Court dated March 21, 2007, Karen Hunter, who is currently Chairman of the Shinnecock Nation Gaming Authority (the “Gaming Authority”), formerly known as the Shinnecock Nation Casino at Westwoods Authority, was substituted as a party defendant in this action in the place of Phillip D. Brown, V, who was the successor to defendant Mr. Bess as Chairman of the Gaming Authority. B. The Westwoods Parcel The Shinnecock Tribe owns a parcel of land, commonly known as “Westwoods,” which is approximately 80 acres in total area, located in the Hampton Bays area within the boundaries of the Town. (Stip. No. 15.) Westwoods is located approximately 85 miles east of New York City. (Stip. No. 37.) Westwoods consists of three tax lots: (a) Suffolk County Tax Map, District No. 0900, Section 186, Block No. 2, Lot No. 38 (“Parcel A”); (b) Suffolk County Tax Map, District No. 0900, Section 187, Block No. 2, Lot No. 78 (“Parcel B”); and (c) Suffolk County Tax Map, District No. 0900, Section 207, Block No. 1, Lot No. 1 (“Parcel C”). (Stip. No. 16; D259, at 4; D156 a, b, c, d.) Parcel A is property to the north of Newtown Road and south of Great Peconic Bay; this parcel is about 41.5 acres. Parcel B is property north of Sunrise Highway and south of Newtown Road; this parcel is about 36.7 acres. Parcel C is property south of Sunrise Highway and is about 2.0 acres. (D259 at 8; D264; D156d; Stip. No. 16; Tr. 3292-94.) The Nation currently has fee simple title to Westwoods. (Stip. No. 17.) The Nation currently occupies and possesses Westwoods. (Stip. No. 18.) Westwoods is not part of any reservation established by New York. (Stip. No. 20.) Westwoods does not appear in the records of the BIA as Indian fee land, the title to which is restricted against alienation in accordance with 25 U.S.C. § 177. (Stip. No. 24.) Westwoods is not currently under federal superintendence, as that term is used in connection with land that is a “dependent Indian community” for purposes of 18 U.S.C. § 1151(b). (Stip. No. 25.) West-woods is not a “dependent Indian community” within the meaning of 18 U.S.C. § 1151. (Stip. No. 26.) Westwoods was not set aside by the federal government for the use of Indians as Indian land, as that term is used in determining whether land is a “dependent Indian community” for purposes of 18 U.S.C. § 1151(b). (Stip. No. 27.) There exists no express agreement between the Nation and the United States regarding Westwoods. (Stip. No. 28.). There exists in the Office of the Clerk of Suffolk County no recorded deed by the Nation, as grantor, conveying title to all or any part of Westwoods to anyone, nor is there a recorded deed conveying title to all or any part of Westwoods to the Nation, as grantee. (Stip. Nos. 29 and 30.) There are other areas adjacent to, or in the vicinity of, Westwoods and the Town that are relevant to the instant litigation: (a) Canoe Place or Niamuck (“Canoe Place”) is a name given to a place where Indians formerly carried their canoes between Shinnecock Bay and the Great Pe-conic Bay in what is now Southampton (Stip. No. 35); (b) Canoe Place is located at the approximate current site of the Shinnecock Canal in Southampton (Stip. No. 36); (c) Cold Spring Pond is a body of water within the Town east of Canoe Place and is located approximately two miles east of the closest boundary of Westwoods (Stip. No. 38); (d) Quogue is a hamlet within Southampton to the west of Canoe Place and is located approximately 6-1/2 miles southwest of the closest boundary of Westwoods (Stip. No. 39); and (e) Seatuck is a place located at the southern end of the current western border of the Town (Stip No. 46), and is located at the current border between the Town of Brookhaven and Southampton. (Tr. 2580-81; T226.) C. Westwoods at the Time of the First European Contact The Nation was in possession of the lands in and around Southampton when the first European settlers arrived in 1640. See Shinnecock Indian Nation, 400 F.Supp.2d at 489. In fact, plaintiffs’ expert agreed that the whole Town was owned by the Shinnecocks at the time of first European contact in 1640. (Tr. 1115— 16.) Moreover, the history of the Town contained in its own records states that when the first settlers arrived “it appears that the whole extent of what is now the town of Southampton was owned by the Shinnecock tribe of Indians, who were divided into many small bands, and were living in villages that were without exception situated near the different creeks or branches of the bays.... ” (D3, at II — III.) Thus, at the time of first European contact, Westwoods was possessed and owned by the Shinnecocks. D. The Settlement and Formation of Southampton By a Patent granted on April 20, 1635 by the Plymouth Company (the “Sterling Patent”), Lord William Alexander, the Earl of Sterling, obtained undisputed title, in the name of the King of England, to the lands of Long Island. (James P. Lynch, The Shinnecock and “Westwoods” in Southampton, New York: An Ethnohistorical Analysis, Feb. 16, 2005(T12), at 18-20; Alexander von Gernet, On the Authority of New York Colonial Governors to Decide on Matters Relating to Shinnecock Lands and the Town of Southampton, June 29, 2006(S62), at 6; T29, at 29.) James Farrett was the duly appointed agent of the Earl of Sterling, who was granted the right and authority to convey lands within the Sterling Patent. (T12, at 21-22; S62, at 6; T32, at 50-51; Tr. 2441.) By deed dated April 17, 1640, Farrett granted free leave and liberty to four named English colonists and their associates to possess and improve a parcel of “eight miles square” of land on Long Island. (T12, at 22-23; S62, at 6; T33, at 45-47.) The deed, dated April 17, 1640, also granted to the four named English colonists and their associates the right to “make purchase (in theire owne names at theire owne leisure from any Indians that Inhabit or have lawfull right to any of the aforesaid land) all or any pt thereof, and thereby assure it to themselves and their heyres as theire Inhabitance for ever.” (T12, at 22-23; S62, at 6-7; T33, at 46.). By a confirmation document dated July 7,1640, Farrett specified the bounds of the aforesaid “eight miles square” of land that constituted the plantation that came to be known as Southampton (the “Southampton plantation”). (T33, at 49-50; T12, at 23-24; S62, at 7.) In particular, the confirmation of July 7,1640 specified that the westerly bounds of the “eight miles square” of the Southampton plantation was “the place where the Indians drawe over their canoes out of the north bay over to the south side of the island,” ie., Canoe Place. (T33, at 49; T12, at 23-24.) The lands constituting the Southampton plantation as of 1640 were thus situated exclusively to the east of Canoe Place. (T33, at 49-50; T12, at 24; Katherine A. Hermes, Rebuttal Report to Alexander von Gemet’s Report Entitled “On the Authority of New York Colonial Governors to Decide on Matters Relating to Shinnecock Lands and the Town of Southampton,” Aug. 21, 2006(D91), at 5; Tr. 2441, 2175.) On December 13, 1640, certain Shinne-cock Indians, including tribal leadership, executed a deed that conveyed to English colonists all of the Shinnecock Tribe’s right, title, and interest in lands bounded on the west by “the place where the Indians hayle over their cannoes out of the North bay to the south side of the Island,” ie., Canoe Place, (the “1640 Deed”) (S66, at 266-67; T12, at 31; T181, at 266-67; S62, at 7-8.) Only lands located to the east of Canoe Place are described in the 1640 Deed. (Stip. No. 21.) In or about 1644, the “Towne of Southampton” was accepted into the jurisdiction of the Colony of Connecticut, under terras and provisions set forth in a document entitled “Ye Combynation of Southampton Wth Har[t]ford.” (T12, at 26-27; D95; Katherine A. Hermes, Report on the History of Land Transactions Between the Colony of Connecticut and the Long Island Indian Tribes in the Seventeenth Century, June 30, 2006(D25), at 20; Tr. 2443.) The terms of the “Ye Combynation of Southampton Wth Har[t]ford,” provided, inter alia, that “if [u]pon vewe of such orders as are alreddy established by ye General Court for ye Jurisdiction of Con-nectecoate, there be found any difference therin from such as are also for ye present settled in ye Towne of Southampton, the said Towne shal ha[v]e libertie to regulate themsel[v]es acording as may be most sutable to their owne comforts and conveniences in their own judgment, provided those orders made by them concerne themsel[v]es only and intrence not [u]pon ye interestes of others or ye Generali Combination of ye [u]nited Collonies, and are not cross to ye rule of riteousness. The like powre is also reser[vjed [u]nto themsel[v]es for the future, for making of such orders as may concerne their Towne ocations.” (D95, at 567; T12, at 27.) By reason of these terms and provisions, 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. (T12, at 27.) 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. (Tr. 2456; D91, at 5.) In 1650, the Connecticut General Court enacted an order that makes reference to an earlier order that prohibited individuals from buying any land from Indians, either directly or indirectly, under any pretense whatsoever (the “1650 Order”). (D46.) The 1650 Order remained the law of the Colony of Connecticut until 1663, when the Connecticut General Court enacted an order that replaced it. That successor order prohibited purchases of Indian land by individuals, except with allowance of the General Court. (D100; D25, at 20-21; Tr. 2453.) New England colonies other than Connecticut had similar laws and these laws were very widely published and understood. (D25, at 3.) E. The Ogden and Topping Transactions Involving Westwoods As set forth below, in the 17th century, there were two transactions in which the Nation sold lands west of Canoe Place, including Westwoods, to non-Indians and the Town subsequently acquired those lands. (1) The Ogden Purchase As of May 12, 1659, the western boundary of Southampton was Canoe Place. (T12, at 24; T33, at 49-50; T181, at 266-67; D91, at 5.) On May 12, 1659, Sachem (Chief) Wyandanch and his son, on behalf of the Shinnecocks, conveyed the lands west of Canoe Place [west to Peaconock], to John Ogden, by an instrument that is referenced herein as the “Ogden Deed.” This acquisition by Ogden became known as the “Quogue Purchase” or the “Ogden Purchase.” (T50, at 162; T12, at 37; Tr. 872-76,1067.) At the time of the Quogue Purchase, Ogden was a Southampton proprietor who was also a magistrate to the Connecticut General Court. (T12, at 37; T59, at 70-71; Tr. 2557; D25, at 24; D136, at 314; D137, at 334.) Moreover, at that time, Sachem Wyandanch possessed political authority over the Shinnecocks, including authority to convey the lands west of Canoe Place to Ogden. (T12, at 33-36; Tr. 889-93, 895-896; T45, at 198; T46; T47, at 295; T49; S62, at 8 & n. 9.) For example, on May 15, 1657, approximately two years before the Quogue Purchase, the Connecticut Colony General Court acknowledged that the Shinnecocks recognized the “Montacutt Sachem” (ie., Sachem Wyandanch) as their Sachem. (T47, at 295; Tr. 2541.) The lands west of Canoe Place, conveyed by Sachem Wyandanch and his son to Ogden on May 12, 1659, were not part of the Colony of Connecticut at the time of that conveyance, as they were outside the territorial limits of Southampton. (T50, at 162; T12, at 24, 26, 32; T33, at 49-50; T34; D91, at 5; D95.) The lands conveyed by Sachem Wyandanch and his son to Ogden included Westwoods. (T12, at 37; D25, at 2, 24; T50, at 162; Tr. 876, 2474.) There is nothing in the historical record reflecting or suggesting that at any time prior to this litigation, the Shinnecock Tribe in any way disputed or contested Sachem Wyandanch’s authority to act on their behalf (Tr. 896.) Sachem Wyandanch died in 1659. (S69, at 57; S62, at 9 n. 13.) By an order dated June 7, 1665, the Court of Sessions in Southold directed that the annual sum of twenty-five shillings per year, which was to be paid to “ye late Sachem Wyandance,” pursuant to the terms of the Ogden Deed, (T50), should be made to the “sunk squaw daughter & heire to the said sachem.” (T56, at 171; T57; T12, at 38.) Thus, one can infer from the order of June 7, 1665 that the Court of Sessions considered the Ogden Deed a valid, lawful, and effective instrument. Sometime between May 12, 1659 and February 2, 1663, Ogden sold the lands of the Quogue Purchase to John Scott. (T12, at 38; T53; S62, at 9 & n. 11; Tr. 2472.) On February 2, 1663, Scott sold the lands of the Quogue Purchase to the proprietors of Southampton. (T53, at 175-76; T66 at p. 54; S67, at 175-77; T12, at 38-39; S62, at 9; Tr. 2472.) Upon the sale of the lands of the Quogue Purchase by Scott to the proprietors of Southampton, Ogden confirmed in writing that “Wyandanch delivered unto him quiet seizen and possession of [those] lands ... all the lands above recited in part of pay of the four hundred pounds the Shinecock Indians stood indebted, and the said Wyandanck bound for the said Indians.” (T53, at 176; T12, at 38.) (2) The Topping Purchase As of April 10, 1662, the western boundary of the Town was Canoe Place. (T12, at 24, 39-40; T58, at 167-68; D91, at 5.) On April 10, 1662, Sachem Wyandanch’s political successor, Weany Sunk Squaw, and others, on behalf of the Shinnecocks, sold and conveyed lands west of Canoe Place to Thomas Topping. This transaction has become known as the “Topping Purchase.” (T191; T12, at 39-41; Tr. 896-98; T58, at 167-68; S62, at 9.) At the time of the Topping Purchase, Topping was a Southampton proprietor who was also a magistrate to the Connecticut General Court. (T12, at 39; T59, at 70-71; Tr. 2558; D25, at 24.) The lands of the Topping Purchase were situated west of Canoe Place, and included the lands of the Quogue Purchase, including Westwoods. (T12, at 39-40; Tr. 899; T58, at 167-68; T191; D25, at 24-25; Tr. 2474.) The lands that were the subject of the Topping Purchase were not part of the Colony of Connecticut at the time of the Topping Purchase because they were situated outside the then-territorial limits of Southampton. (T12, at 24, 26, 32, 41; T33, at 49-50; T34, at 31; T58, at 167-68; T61; James P. Lynch, Supplement to The Shinnecock and ‘Westwoods” in Southampton, New York: An Ethnohistorical Analysis, June 29, 2005(T13), at 12; D91, at 5; D95.) The western boundary of the lands identified in the Topping Purchase was “Sea-tuck,” which is the modern-day border between Southampton and Brookhaven. (T12, at 39; Tr. 897-98; T58, at 168; T61; T191; Stip. No. 46.) The Topping Deed recited that the consideration for the Topping Purchase was “four score fathoms of wampum, or other pay, equivelent.” (T58, at 168; Tr. 899, 2183-84.) By this purchase, Topping acquired the same rights to land west of Canoe Place that were included in the Ogden Purchase. (T12, at 41; S62, at 10; D91, at 7.) Whatever the reason for these overlapping deeds (which both included Westwoods), there is no question that these lands were sold by the Shinnecock Tribe and subsequent determinations by governors, discussed infra, confirmed such sale when issues arose related to these lands. F. Colonial Era Documents and Events Following the Ogden/Topping Transactions Following the Ogden and Topping transactions, there were several occasions in the 17th century during which issues relating to those lands were brought to the attention of the Governor of the Province of New York and, in one instance, a court. As set forth below, on each of these subsequent occasions, the prior sale of such land to Southampton was confirmed. (1) The Nicolls Determination In a document dated September 17, 1666, several Shinnecocks recorded their “protest” over the 1662 sale of lands west of Canoe Place by Weany (Sunk Squaw) and other Shinnecocks to Captain Topping, claiming that they were “the true proprietors of the said lands.” (T61; Tr. 2180-83.) In the 1666 protest document, the Shinnecock signatories sought to have Governor Richard Nicolls (whom they expressly acknowledge to be the “hon (bbl) & discreet Governor of this Island”) determine that they were the “true proprietors” of the lands of the Topping Purchase, and that they should receive payment from the Southampton proprietors, for their conveyance, if so directed by Governor Nicolls. (T61; Tr. 2180-83.) Notwithstanding its use of the word “protest,” the September 17, 1666 document declares the intention of its Shinne-cock signatories to “impart and assigne all our said Interest in ye said lands [of the Topping Purchase] ... unto our ancient and loving ffriends the Townes men of Southampton to them and their successors for ever.” (T61; Tr. 2182.) Thus, by the protest document, the Shinnecock signatories were not seeking to unwind, invalidate, or reverse the conveyance of land to Topping, or to obtain the lands of the Topping Purchase for themselves, but instead were merely seeking to be paid, ie., to receive the “four score fathom of wampum” recited as consideration in the Topping Deed. (T61; Tr. 2182-84.) Subsequent to the September 17, 1666 protest document, and on October 3, 1666, Governor Nicolls issued a determination (the “Nicolls Determination”), in which he concluded and determined a “difference” between the “town of Southampton” and “Capt Thomas Topping.” (T66, at 54-56; Tr. 2177-79.) In his determination, Governor Nicolls noted that he had reviewed several deeds, including the deed from “some of Shinecock Indians to Capt Topping,” ie., the Topping Deed, and the deed from “John Scott to Southampton men,” ie., the 1663 deed conveying the lands of the Quogue Purchase to Southampton. (T66, at 54; Tr. 2185-86; S62, at 10.) In the Nicolls Determination, Governor Ni-colls determined, inter alia, that “all the right and interest that ye said Capt Thomas Topping” had by virtue of the Topping Deed “is belonging, doth and shall belong unto the town of Southampton ... and their successors forever,” (T66, at 54.) By virtue of this language, Governor Nicolls determined that Southampton was the rightful owner of the lands of the Topping Purchase. (T66, at 54; T12, at 47-49; T13, at 13-15; S62, at 10-11.) In fact, in the Nicolls Determination, Governor Nicolls promised to defend the Town in its “peaceable enjoyment” of the lands of the Topping Purchase “[ajgainst all other claims whatsoever.” (T66, at 55; T12, at 47-49; T13, at 13-15; Tr. 2564.) Westwoods is located within the boundaries of the lands that were the subject of the Nicolls Determination. (Stip. No. 62.) At the time he issued the Nicolls Determination, Governor Nicolls was the prevailing sovereign authority within the Province of New York, which included Long Island. (T12, at 45-49; T13, at 13; T62; Tr. 1203-04, 2561, 2189-90; S62, at 19-25.) Governor Nicolls had been appointed the first English governor of the Province of New York on April 2, 1664, by virtue of a commission from the Duke of York. (S72; S62, at 19; Tr. 2189-90.) In the Nicolls Determination, Governor Nicolls ordered, inter alia, Southampton to pay to the “Indians (concerned to receive it)” the sum of “four score fathoms of wampum,” which was precisely the same amount specified in the Topping Deed as consideration to be paid to the Shinnecocks for the lands of the Topping Purchase. (T66, at 55; T58, at 168; S62, at 10-11; Tr. 901, 2183-84.) The Nicolls Determination does not explicitly or implicitly contest, challenge, or question in any way, the validity, legality, or effectiveness of either the Topping Deed or the deed from Scott to the Town, for the lands of the Quogue Purchase. (T66; T13, at 14; Tr. 2192-93, 2560.) Governor Nicolls possessed law-making authority to promulgate the Duke’s Laws and he could settle disputes. (T12, at 45-46; S62, at 19-25; Tr. 2189-91; D91, at 11-12.) Governor Nicolls, under the Duke of York’s proprietorship, also had the authority to address the question of Indian land purchases. (S62, at 20-24.) There is nothing in the historical record to suggest that the Shinnecock Tribe has ever challenged, in any way, the validity, legality, or effectiveness of the Nicolls Determination. (Tr. 908.) Subsequent to, and as explicitly directed by the Nicolls Determination, by a written instrument dated November 6, 1667, Topping assigned and delivered to Southampton the Topping Deed, and all his right, title, and interest in the lands of the Topping Purchase, ie., the lands from Canoe Place to Seatuck, including Westwoods. (T197; T13, at 15; Tr. 901-02; 256<D65.) Subsequent to the Nicolls Determination, and on February 22, 1667 (N.S.), several Shinneeock Indians, including Weany Sunk Squaw, Accobacco, and others, confirmed and acknowledged (i) their April 10, 1662 sale of lands to Topping; (ii) that Topping had sold those lands to Southampton; (iii) that Governor Nicolls had ordered the Town to pay “fourscore fathom of wampum”; and (iv) that they had received such payment from the Town. (S70; S70A; S62, at 12; D91, at 10; Tr. 902-05, 2198-99.) The Shinneeock signatories of the February 22, 1667 (N.S.) document confirmed also that they were “fully contented with the bargaine origeinally made with Capt. Topping.” (S70; S70A; S62, at 12; T13, at 16; Tr. 902-03, 905, 2198-99; 2565-56.) The document ended by stating that “wee will defend the s’d Southton men in the possession and enjoyment of the premisses from the clayms of any other.” (S70; S70a.) (2) The 1667 Action COMMENCED by SouthamptoN Against Southold In 1667, a trial was conducted in the Court of Assizes for the Colony of New York (the “Court of Assizes”) in an action commenced by the inhabitants of Southampton against the inhabitants of Southold (the “1667 Action”). (D183, at 59; Stip. No. 64.) The 1667 Action concerned Southampton’s contention that it was the owner of lands known as Aquebauke Meadows, and Southampton’s claim that Southold had trespassed on such lands. (D183, at 59; Tr. 906, 2574-75.) The Aquebauke Meadows were situated to the west of Westwoods, within the lands of the Topping Purchase. (Stip. Nos. 62, 65; Tr. 2576.) During the trial of the 1667 Action, and in order to prove its claim of ownership of the Aquebauke Meadows, Southampton produced the Topping Deed, and stated that the Topping Deed had been assigned to the Town. (D183, at 60; Tr. 906-07; 2576.) Southampton also introduced the Nicolls Determination, and contended that Governor Nicolls “had put a decision to this matter already, when it was before him upon Complaint of the Towne against Captain Tapping.” (D183, at 61; T12, at 49; Tr. 907-08, 2576-77.) The jury in the 1667 Action rendered a unanimous verdict in favor of plaintiff Southampton, and Southampton’s title to the Aquebauke Meadows was thereby confirmed. (D183, at 62; Tr. 908.) The jury’s verdict in the 1667 Action confirmed the validity, legality, and effectiveness of the Topping Deed, and its subsequent assignment to Southampton, as well as the Town’s ownership of all lands included within the Topping Purchase, including the Aquebauke Meadows and Westwoods. (3) The 1676 AndRos Patent On July 1, 1674, Major Edmund Andros was appointed governor of the Province of New York by a commission from the Duke of York. (S62, at 25.) On November 1, 1676, New York Colonial Governor Edmund Andros issued a Patent (the “Andros Patent”) to the proprietors of Southampton. (T188, at 279-80; T12, at 49-50; S62, at 14; Tr. 2202-03.) Among other things, the Andros Patent confirmed the existence of “a certaine Towne ... commonly called and knowne by the name of South Hampton.” (D188, at 279.) The Andros Patent confirmed that the “certaine Tract of Land, thereunto belonging” to Southampton extended from Seatuck on the west to Wainscott (the border between Southampton and East Hampton) on the east, which are basically the east and west boundaries of the Southampton as they are known today. (T188, at 279; T12, at 49-50; S62, at 14; Tr. 908-11.) The western boundary of the tract of land belonging to the Town, as specified by the Andros Patent, is identical to the western boundary of the lands specified in the Topping Deed, i.e., “Sea-tuck.” (T188, at 279; T58, at 167-68; T12, at 50 n. 12; Tr. 2204, 2208-10, 2580-81.) Westwoods is located within the boundaries of the “certaine Tract of Land” described in the Andros Patent. (Stip. No. 77; Tr. 2506-07.) In his Patent, Governor Andros declared that he does “Ratifie Confirme and grant, unto [list of individuals] ... as Patentees for and on the behalfe of themselves and their Associates the ffreeholders and Inhabitants of the said Towne, their Heires, Successors and Assignes, All the aforementioned Tract of Land ... and of every part and parcel thereof, to the said Paten-tees and their Associates, their Heires Successors and Assignes ... for ever....” (T188, at 279-80.) The Andros Patent also provided that “if it shall so happen that any part or parcell of the Lande within the bounds and Limits afore described be not already Purchased of the Indyans It may bee purchased (as occasion) according to Law....” (T188, at 280.) During the colonial era, New York governors frequently exercised their authority to decide on the validity of purchases from Indians and to impose settlements. (S62, at 27.) There is no historical evidence that the Shinne-cock Tribe or any of its members ever challenged or contested, in any way, the validity, legality, or effectiveness of the 1676 Andros Patent. (Tr. 911.) The Colony of Connecticut had no jurisdiction over the Province of New York at the time the Andros Patent was issued. (Tr. 1205.) Accordingly, the 1676 Andros Patent, especially when considered in the context of the prior transactions and documents involving Westwoods, confirmed Southampton’s ownership of all lands west of Canoe Place, including Westwoods. (4) The 1686 Dongan Patent In January of 1683, Colonel Thomas Dongan received from the Duke of York instructions and a commission constituting him the Governor of the Province of New York. (S62, at 28.) In 1686, Governor Dongan received a new commission and instructions directly from the King of England, which granted him certain powers and authority. (S72, at xvii, 177-78; S62, at 28-29; S74.) Governor Dongan was granted full power and authority “to make, constitute and ordain Laws, Statutes and Ordinances for the publick peace, welfare & good Government of our said Province and of the people and inhabitants thereof.” (S72, at xvii; S62, at 28-29; S74.) On December 6, 1686, Governor Dongan issued a Patent (the “Dongan Patent”) to the proprietors of Southampton. (T69; S62, at 15-18; T12, at 50-51.) The term “ffreeholders,” as used in the Dongan Patent, described individuals who were the proprietors of Southampton. (Tr. 2294.) There is nothing in the Dongan Patent (relating to Southampton’s title) that is inconsistent with the scope of Governor Dongan’s authority, as set forth in his 1686 commission and instructions from the king. (S62, at 29.) The Dongan Patent, inter alia, confirmed and reiterated the provisions of the Andros Patent, including its description of the “certaine tract of Land” belonging to Southampton, running from Wainscott on the east to Seatuck on the west. (T69, at 385; T188; Tr. 911-12, 2213-14, 2588-89; T12, at 50-51.) The Dongan Patent recited that it was issued in response to an application submitted by Major John Howell, a freeholder of Southampton, and one of the patentees under the Andros Patent, to “confirm unto ye ffreeholders of said Towne in a more full & ample manner all the aboverecited tracts and pareells of land within the lim-itts and bounds aforesaid and finally determine the difference between the [I]ndyans and the ffreeholders of the said towne of Southampton.” (T69, at 387; Stip. No. 72.) The Dongan Patent recited that Governor Dongan had “examined the matter in variance between the ffreeholders of the said Towne of Southampton and the [I]n-dyans and do finde that the ffreeholders of the Towne of Southampton aforesaid have lawfully purchased the lands within the Limitts and bounds aforesaid of the [I]n-dyans and have payd them therefore according to agreement so that all the [I]n-dyan right by virtue of said purchase is invested into the ffreeholders of the Towne of Southampton aforesaid .... ” (T69, at 387-88; T12, at 50; S62, at 15-16; Tr. 911-13, 2218-19.) The “lands within the Limitts and bounds aforesaid” referenced in the Dongan Patent are stated explicitly to be the lands of Southampton, from Wainscott on the east to Seatuck on the west. (T69, at 385, 387; S62, at 17; Tr. 2217.) As was the common practice at the time, the Dongan Patent was recorded in the Secretary’s Office for the Province of New York and perused by the Attorney General, who found “Nothing Contained therein prejudicial! to his Majys Interest.” (S62, at 29; S65 at 394.) The Dongan Patent created and established a body “Corporate and Politique,” known as the “Trustees of the ffreeholders and commonalty of the Towne of Southampton” (the “Southampton Trustees”), which was made up of the freeholders and inhabitants of Southampton. (T69, at 388.) There is no historical evidence that the Shinnecock Tribe or any of its members ever challenged or contested, in any way, the validity, legality, or effectiveness of the Dongan Patent. (Tr. 913.) Accordingly, the 1686 Dongan Patent confirmed Southampton’s ownership in all lands west of Canoe Place, including West-woods. (5) The 1676 ORDER of the Court of Assizes On October 5, 1676, the Court of Assizes noted that the Town of Southold (“Sout-hold”) and Southampton had not yet complied with the Law of 1664 and prior orders concerning the taking out of “Grants, Patents or Confirmations for their Towns or Lande.” (D77, at 723-24.) By Judgment of the Court of Assizes, dated October 5, 1676, the Court held that Southold and Southampton “have forfeited all their titles, Rights & priviledges to the lands in the sd Townshipps & if they doe not by Monday fortnight next (being the 23rd day of this instant month) send up the acknow-ledgmt of their past Default & Resolves & Desire to obey & fulfill the Law & the severall orders of the Cort of Assizes, for the taking out their Grants, Patents or Confirmations, as directed by Law, Then Execution to issue out by Authority of this Crt for the above forfeiture to the use of his Maty without further delay” (the “1676 Judgment”) (D77, at 724.) The Town complied with the 1676 Judgment, as well as the Law of 1664 and prior orders of the Court of Assizes referenced therein, by October 23, 1676, the deadline set by the 1676 Judgment. (D77, at 724.) There is absolutely no evidence that the execution of the above-referenced Judgment of forfeiture, and the actual forfeiture of Southampton’s titles, ever occurred. According to James Truslow Adams’s History of the Town of Southampton, in 1670, the Southampton titles, including those acquired from the Indians, “were declared invalid by the Court of Assize[] unless renewed under the new government.” (D42, at 89.) The foregoing passage confirms that the invalidation of Southampton’s titles was conditional only. In other words, it would occur only if the 1676 Judgment were executed, if the Town did not comply with the Judgment by October 23, 1676. (D42, at 89.) The condition expressed in the 1676 Judgment did not occur and, therefore, the forfeiture of Southampton’s land titles never occurred. G. Use and Occupancy of Land West of Canoe Place, including Westwoods The Court has carefully examined the evidence to determine what, if any, use and occupancy of land west of Canoe Place, including Westwoods, has occurred by the Nation since these colonial era transactions and events. As set forth in detail below, based upon that review of the evidence, the Court concludes that, with respect to the period from the late 17th century through the 18th century, there is overwhelming evidence that the Nation occupied land to the east of Canoe Place during this period and scant, if any, evidence that they occupied and used land west of Canoe Place, which is where West-woods is located. Moreover, even if members of the Shinnecock Tribe inhabited areas west of Canoe Place at some time between the 17th and at least the end of the first three quarters of the 19th century — as asserted by defendants’ habitation witness Dr. Jack Campisi — there is no evidence that their use or occupancy was exclusive or continuous, and there is no evidence of how many Shinnecock resided there, or where, or for how long. For example, as conceded by Dr. Campisi, there are no records for the period 1743 through 1889 that indicate that the Shinne-cock Indians lived west of Canoe Place, but there are records during that period that indicate that the Shinnecock Indians lived east of Canoe Place. (Tr. 2754-57.) Moreover, Dr. Campisi’s conclusions are of limited value because he completely disregarded and failed to explain the numerous above-referenced colonial era documents— such as the Ogden Deed, the Topping Deed, and the Nicolls Determination — that support the conclusion that the Shinne-cocks sold all their lands west of Canoe Place and resided east of Canoe Place. In short, the Court finds that there is no evidence of regular or continuous Shinne-cock Indian Nation habitation on West-woods from 1640 to the early 20th century. Instead, the use and occupancy evidence is consistent with the conclusion that the Shinnecock Tribe sold its rights, title, and interest in the lands west of Canoe Place in the 17th century and resided east of Canoe Place. The Court has analyzed the evidence offered by both parties on this issue and provides below the reasons for the Court’s conclusions. (1) The 1703 Lease Lands By an “Indenture” dated August 16, 1703 (sometimes referred to as the “1000 year lease”), the Shinnecock Indians acquired from the Town certain usufruct rights, for a period of 1,000 years, in lands east of Canoe Place. (T73; Tr. 2755; T12, at 55-57.) The lands that are the subject of the Indenture (collectively, the “1703 Lease Lands”) include the Shinnecock Hills, the areas known as Sebonack and Cold Spring, and Shinnecock (Great) Neck. (T199; T12, at 55-56, 63, 65, 76, 87; T73; Tr. 2755.) In conjunction with the execution of the 1703 Indenture, the Shinne-cocks executed a confirmatory deed to the Trustees of Southampton, dated August 16, 1703, in which the Tribe