The DEC and Mohawk Treaty Rights Challenged

As an enrolled member of the St. Regis Mohawk Tribe (SRMT), I have been made aware of yet another dilution of scant tribal rights and the absolute failure of treaty parties to live up to the spirit of the agreements made as the absolute law of the land.

Recently, New York State Judge Jerome Richards addressed the legal appeal of a 2011 Department of Environmental Conservation (DEC) citation which had been issued to Rodger “Roger” T. Thomas of Akwesasne, also an enrolled member of the SRMT. The DEC ticket had been issued for unlawful harvesting of wildlife (out of season) while fishing on the St. Lawrence River, which happens to run through the Mohawk Reservation.

Mr. Thomas had been convicted of possessing the walleye fish which had been cultivated three days before fishing season began, in a Massena Town Court proceeding before Justice James Crandall in April 2011. The bench trial verdict was appealed by Mr. Thomas through the invocation of the 1796 Treaty between the United States and the Seven Nations of Canada, citing his tribal affiliations.

New York Environmental Conservation Officer Troy Basford had noted the tribal member fishing on a break wall on the St. Lawrence River, “near the entrance of the town – or the Seaway,” off of an unnamed road. The fisherman identified himself as a North American Indian fishing on the lands and waterways of his ancestors, which he knew to be in dispute, according to DEC Officer Basford’s testimony.

Defense exhibits raised during the appeal included St. Regis Mohawk Tribal letterhead showing Mr. Thomas was a donor of walleye fillets to the Office for the Aging for elder tribal meals, subsequent to the DEC ticket being issued. Elected tribal chief Ronald LaFrance Jr. also testified on behalf of Mr. Thomas.

St. Lawrence County court transcripts fail to fully convey the elected chief’s testimony, however, the understanding is that the SRMT asserted a tribal interpretation of the 1796 Treaty that extended tribal protection of tribal member usage to identified treaty areas. Tribal General Counsel Michelle Mitchell participated in the appeal witness questioning.

Although Judge Richards ultimately was unable to have a precise location identified to him where Mr. Thomas was actually fishing, he ruled on appeal that his review of the cited treaty “makes no mention of fishing rights” and he upheld the lower court conviction against Roger Thomas.

The 1796 Treaty specifically was made with the Canadian Seven Nations. Roger Thomas is also an enrolled Canadian band member.

The largest reasoning gap involving United States treaties with North American Indian tribes is the perspective being interpreted. These treaties were pursued by colonists and non-natives. The treaty terms do not reflect the representative treaty rights or powers reserved by the tribes; the treaties rather show dispensation towards the colonists and their successors for limited co-use of the noted Turtle Island resources

This same approach was made in regard to alleged land sales and the ceasure of tribal authority over these same New York counties surrounding the Mohawk Reservation. Land could not be sold, and this was plainly understood throughout the Iroquois Confederacy. Land could be leased, however, and these land usage precedents fell under the weight of colonial territory aspirations, directly to present times.

It is worth noting that the SRMT government considers certain mailing addresses within the disputed 1796 Treaty lands as the basis for maintaining political candidate residency requirements. There is no secret that the SRMT considers portions of Massena and Fort Covington, New York as suburbs of the reservation. The prominent involvement of key tribal officials in the Roger Thomas appeal shows the importance that this argument holds for the future of the tribal enrollment expansion and tribal member business establishment.

The traditional Mohawk perspective not so explicitly expressed here is recounted often in the Mohawk Longhouses. The majority of such Conservation Officer tickets to Longhouse members have in the past been thrown out by New York courts of all levels, for various technicalities. Given the ongoing litigation of the New York Land Claims settlement efforts, there is no sense in making legal sand castles before that ruling is returned. Judge Richards elected to narrow the decision to avoid direct treaty commentary itself.

Possibly, the SRMT needs more involvement of enrolled tribal members to help make the case that people and land cannot be separated from each other through paperwork. An auxiliary tribal member “sapper” group could meet to demonstrate tribal rights in a number of planned events, to test the waters more vigorously, with the defense and assistance of such acts provided by the SRMT in response to arrest and citation. How will the surrounding mainstream governments ever know that enrollment is serious about tribal rights unless such are politically tested, for the benefit of the entire tribal membership?

Charles Kader (Turtle Clan) was born in Erie, Pennsylvania to a World War Two veteran. He attended Clarion University of Pennsylvania, earning degrees in Communication and Library Science, as well as Mercyhurst College where he earned a graduate degree in the Administration of Justice. He has worked across Indian country, from the Blackfeet Community College in Browning, Montana (where he married his wife) to the Saint Regis Mohawk Tribe, and now resides in Kanienkeh.

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