Mohawk Land Claim Hearing Held

On June 16, 2011, a hearing was held before Federal Magistrate George Lowe on whether New York State motions to dismiss the Mohawk Land Claim should be granted. At the heart of the matter is whether the rulings in the City of Sherrill v. Oneida Indian Nation, Cayuga Indian Nation v. Pataki, and Oneida Indian Nation v. county of Oneida apply to the Mohawk land claim.

These court rulings set bad precedents for Indian Land Claims across the United States. They basically said that because land claims are inherently disruptive to the White people who now occupy Indian lands, “equitable” defenses should apply to bar the claim. Equitable defenses are a defense that a claim is too late and would be too disruptive to allow.

In making this determination, Magistrate Lowe asked the defendants (the State of New York) whether this rule should apply to the Mohawk Land Claim. David Roberts, Assistant Attorney General for New York State, clearly said this was the case. Land Claims are inherently disruptive to the larger White society and there is no need to do any fact-finding.

Marsha Schmidt, land claims attorney for the Saint Regis Mohawk Tribe, in responding to this question, offered an analogy in regards to taking a knife on an airplane. She said that a knife is inherently dangerous and banned from airplanes. But she said that you can use a plastic knife on an airplane because it is dull and not inherently dangerous. Her point was you need to look at the facts.

Ms. Schmidt stated that there are two parts to the disruptiveness question. The first part is whether it is disruptive. The second part is whether it is disruptive enough that it is subject to the equitable defenses. Harry Sachse, land claims attorney for the Mohawk Council of Akwesasne added in that the Mohawk land claim is different from the Oneidas and Cayugas because the Mohawks never left. Curtis Berkey, land claims attorney for the Mohawk Nation Council of Chiefs said that there are seven factors that need to be examined before a determination on whether a land claim is disruptive enough for the defenses to apply.

Jim Cooney, from the United States Department of Justice, stated that the United States believes there is a two-part test, step one is whether it is disruptive and step two is whether it is disruptive enough that it should bar the claim.

Roberts argued on behalf of the state that there is no need to look at factual inquiry because of the inherent disruptiveness of Non-Intercourse claims. Attorney Kimo Peluso, representing the New York Power Authority added the length of delay in bringing the claim should bar the claim.

Magistrate Lowe asked the Mohawk plaintiffs to explain what facts they wanted Judge Kahn to take notice of in the mainland claim. He couched his question in terms that he called “justifiable societal expectations” that were used in the Oneida and Cayuga cases in support of the determination that the claim was disruptive. In other words, because the land purchases that took place occurred over 150 years ago, does their ownership today place societal expectations on the part of White people that are more important than the Indians who are trying to get their land back?

Ms. Schmidt argued that the Mohawk land claim was totally different than the other land claims in the state and that fact finding was indeed necessary before this question could be answered. She said that the Mohawk plaintiffs were narrowing their claim down to the Hogansburg Triangle and the tract between the eastern boundary of the current reservation and Fort Covington. She said that the Hogansburg Triangle, according to U.S. Census statistics, is owned 78% by Mohawk and populated 76% by Mohawk. She added that the Fort Covington tract is sparsely populated and that disruption is minimal.

In response, Magistrate Lowe raised that the 24% of White people in the Hogansburg Triangle could have significant expectations. Ms. Schmidt responded that, in the Triangle, the Mohawks are the majority society whose expectations should be considered and the disruption is occurring against them. She also said that the concerns of the White people could be addressed in a remedy to the claim.

Assistant Attorney General Roberts argued that the Mohawks should not be allowed to limit their mainland claim to just the Hogansburg Triangle and the Fort Covington tract and that these attempts were rejected in the other cases, particularly the Onondaga case. Ms. Schmidt countered that each Mohawk purchase was a treaty and separate transaction and that you could separate them.

Magistrate Lowe asked a question about checker boarding in the claim area. That means that different pieces of land would be under the authority of different governments. Ms. Schmidt said that it was reverse checker boarding, that the Saint Regis Mohawk Tribe was exercising governmental authority and services in the area already and only a few parcels were under non-Indian authority. Mr. Berkey reminded the magistrate that the Onondaga claim was for 2 million acres so the Mohawk claim was much more finite.

Assistant Attorney General Roberts claimed that the Mohawk land purchases have occurred in the last twenty years. He urged the magistrate to make his determination based on when the claims were made, back in 1982 and 1989.

Magistrate Lowe did not give a time line as to when he would make his decision on whether fact finding should occur on the level of disruptiveness of the claim or if it should be dismissed because all Non-Intercourse claims are inherently disruptive. No decision is expected to occur before the fall 2011.