A map of the St. Regis Mohawk Tribal land claims. (Courtesy St. Regis Mohawk Tribe)

Federal Government Supports Mohawk Land Claim

Gale Courey Toensing
11/28/12

 

In what is being hailed by the St. Regis Mohawk Tribe as an unprecedented legal effort, the federal government is defending the Indian nation’s long-standing land claim lawsuit that would reaffirm its 18th century reservation boundaries and jurisdiction on its land. The case could set a positive standard for other Indian land claims in the state.

U.S. Assistant Attorney General Ignacia S. Moreno and U.S. Department of Justice Attorney James B. Cooney filed a lawsuit November 16 in federal court on behalf of the federal government as a plaintiff-intervener. Plaintiffs are the St. Regis Mohawk Tribe, which is the elected and federally recognized government of the St. Regis Mohawks and two Longhouse groups – the Mohawk Nation Council of Chiefs and the Kanienkehaka Longhouse.

The federal lawsuit objects to a magistrate’s recommendation to dismiss portions of the Mohawks’ land rights lawsuit and instead recommends moving the lawsuit forward on all of the Mohawks’ claims. Defendants in the lawsuit are the state of New York, St. Lawrence and Franklin counties, local towns, the Niagara Mohawk Power Co. and others.

U.S. Magistrate Judge Therese Wiley Dancks issued a “Report and Recommendation” at the end of September on the decades-old Mohawk land claim, which asserts that New York state illegally purchased thousands of acres of Mohawk land in the 19th century in violation of the 1790 Nonintercourse Act. Dancks dismisses the Mohawks’ claim to land in Franklin and St. Lawrence counties and the Town of Fort Covington area in New York, and to Barnhart, Croil (historically known as Baxter), and the Long Sault Islands in the St. Lawrence River, but upholds the Mohawks’ claim to the Hogansburg Triangle, which is preserved in a 1796 Treaty with the Seven Nations of Canada. The parties have filed objections to the “Report and Recommendation” with federal court judge Lawrence E. Kahn, who will decide whether to dismiss the case as requested by the defendants or will preside over the case in a trial next year.

In dismissing the several parcels, Dancks relies on other Indian land claims in the state that have been dismissed in federal court, notably claims by the Oneida Indian Nation and the Cayuga Nation. In March 2005, the U.S. Supreme Court dismissed the Oneida Nation’s land claims, saying that too much time had passed since the 18th century treaty that guaranteed the nation’s land forever. “[S]tandards of federal Indian law and federal equity practice preclude the Tribe from rekindling embers of sovereignty that long ago grew cold,” the majority opinion said. The Oneida case set the precedent for a new laches and a new equitable defense argument that have developed in New York state courts in awarding decisions favoring the state over Indians in land rights cases. The new defense considers the length of time between Indian dispossession and the filing of the land claim, the departure of the Indians and tribal governance from the region, and the settlement and development of the land by non-Indians. In the other cases, the courts have considered this mix of elements and concluded that the development of the land has given rise to “justified societal expectations,” the federal lawsuit says. In other words, even if the land was illegally taken from the Indians, it will not be returned to them if it would inconveniently disrupt the expectations of the people now living, doing business, and profiting on the land.

In both the Mohawks’ and federal government’s briefs, the attorneys argue that the equitable defense claim used in the other Indian land claims does not apply to the Mohawks. “In the other New York land claims that have been dismissed by the Second Circuit, it was inarguable that the lands at issue had become heavily populated and developed by non-Indians in the years since New York unlawfully acquired the lands, and those lands, according to the Second Circuit, had consequently lost their Indian character. That is not true here,” the federal attorneys write. “Although the Mohawks lost land, they retained a sizeable Reservation in the area, never departed the region and have remained a powerful enduring presence both as a government and as a population in the region and within the specific claim areas.” In a media release, the St. Regis Mohawk Tribe says that more than three quarters of the population in the area is Mohawk.

The attorneys argue that Danck errs “as a matter of law” in recommending dismissal of the Mohawk claims for the islands and the land in the Town of Fort Covington area because the facts of non-Indian settlement and development of the lands are disputed and when that happens, the court should deny the defendants’ motions to dismiss the case based solely on written pleadings, and instead should decide the issues based on the merits of the case presented at trial.

Additionally, the magistrate errs because, unlike other Indian land claims, the only development on the islands is a power plant that is under federal jurisdiction on land to which the federal government holds title, the lawsuit says. “The Second Circuit views the United States’ role in such suits as limited to protecting the rights of tribes, rather than enforcing its own sovereign interests,” although as owner of the underlying fee title, the federal government is also enforcing its own rights over the islands, the lawsuit says. But in any case, the state has no legitimate claims since the islands lay outside of the U.S. border when the state was established. “[T]hus, New York has never held any legitimate right of preemption or property interest in the lands they (the islands) encompass,” the lawsuit says.

In an e-mail exchange St. Regis Mohawk Tribe elected chiefs Randy Hart, Ron LaFrance and Paul Thompson clarified some of the complex issues of land rights and jurisdiction in the Mohawks’ fragmented territory.

 

The 1796 Treaty with the Seven Nations preserves a "tract equal to six miles square … to be applied to the use of the Indians of the village of St. Regis." Is that six square mile tract the whole of the Hogansburg Triangle?

The Hogansburg Triangle forms a part of the six-mile tract identified in the Treaty of 1796. It also includes the reservation currently recognized by the state, as well as the lands identified in the town of Fort Covington, immediately adjacent to the currently recognized reservation. The “Hogansburg Triangle” identifies a triangular piece of properties that were purchased illegally by New York state in agreements that were never approved by the Federal government.

 

Is there a treaty that covers the other lands?

The Treaty of 1796 includes the currently recognized reservation, the Hogansburg Triangle, a portion of the Town of Fort Covington adjacent to the currently recognized reservation, as well as mile squares in the Village of Fort Covington, and the Village of Massena and lands on both sides of the Grasse River from the miles square in Massena to the mouth of the St. Lawrence river. The illegal purchases of certain lands described by the Treaty were never approved by the federal government, as required by federal law.

The Island claims, which include Barnhart, Croil and Long Sault Islands involve a different set of circumstances. After the War of 1812, the Boundary Commission, established by the Treat [of Ghent that ended the war] between the British and United States, moved the Canadian border north, thereby removing these islands from British control. At the time the Islands were transferred, the government of Great Britain had already recognized that the St. Regis Indians had aboriginal rights to the Islands. The Treaty establishing the Border Commission provided that property rights would not be disturbed in the event that Islands formerly in possession of one sovereign were transferred to another.

 

What is the status of tax paying in the area?

The Hogansburg Triangle remains part of the Saint Regis Mohawk Reservation, and is therefore not subject to property taxes.

Do Mohawks and/or non-Indians pay property taxes to the local municipality?

As to Mohawks, this is an individual decision. There is a standing agreement with Franklin County that Mohawk property will not be put up for auction. The tribe is made aware of any Mohawk whose property ends up on the yearly list of properties being put up for auction at a tax sale. We then take steps, agreed to with Franklin County, to remove the properties from the auction list. The county, however, continues to take title to the properties, AND continues to charge taxes, interest and penalties to the previous title owner. The properties cannot be sold or transferred to others, because Franklin County holds title.

It remains a bit confusing to us, how Franklin County can go into court, remove title from a Mohawk, put title in their own name, and continue to bill the individual Mohawk. We are currently looking at ways to challenge this practice. As you may imagine, some of the tax bills have become so high, largely due to interest and penalties and legal fees, that many individuals would never be able to redeem these properties even if they wanted to.

 

Does the Mohawk nation collect taxes from anyone?

The SRMT does not impose property taxes on any of its members.

 

Does the SRMT provide services to Indian and non-Indian residents on Mohawk land?

The tribe provides trash pick-up, police services, water and sewer lines, ambulance services and road construction in the Hogansburg Triangle.

 

In 2005 there was an agreement among the parties to settle the land claims. Why wasn't it implemented?

After the Supreme Court decided Sherrill in 2005, the counties, which had signed the settlement agreement just months before, adopted resolutions withdrawing their support for the settlement agreement. In addition, state legislation that was required to implement the settlement agreement was never introduced to the state legislature.

The 1796 treaty also promises to provide payment to the Seven Nations, including "on the third Monday in August, yearly, forever thereafter, the like sum of two hundred and thirteen pounds six shillings and eight-pence:" Is that treaty money still paid each year?

Yes. The tribe receives a check each August of $2,160. The funds are used to support the Akwesasne Mohawk Library.

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Anonymous's picture
Anonymous
Submitted by Anonymous on
So even if we got ripped off the only recourse is to try and get back the land that the whites have not built homes on? How is that legal or lawful?The precedence should be the original treaties and the territories defined,nothing else. Imminent domain laws can clear the land of the first Sooners and give the land back to the original owners.State foots the bill and the temporary occupants get to look for land in Ohio or Miami,Florida.

Anonymous's picture
Anonymous
Submitted by Anonymous on
So even if we got ripped off the only recourse is to try and get back the land that the whites have not built homes on? How is that legal or lawful?The precedence should be the original treaties and the territories defined,nothing else. Imminent domain laws can clear the land of the first Sooners and give the land back to the original owners.State foots the bill and the temporary occupants get to look for land in Ohio or Miami,Florida.
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