U.S. Claims Underlying title to Islands on Behalf of Mohawks

James Cooney, United States Department of Justice, threw the State of New York for a loop at the June 16, 2011 land claim hearing in Albany when he asserted that underlying title to Barnhart, Baxter, and Long Sault islands rests with the United States on behalf of the Mohawks and not with the State of New York.

Cooney asserted that the Mohawk islands were part of the British empire and not part of New York State prior to the War of 1812. When the Treaty of Ghent was signed ending the war between Britain and the United States, the international boundary was established and the underlying title to these islands was transferred to the United States on behalf of the Mohawks.

The assertion becomes critical to the Mohawk land claim case. Should U.S. Magistrate George Lowe agree that the United States has underlying title to the islands on behalf of the Mohawks, it would mean that New York State could not assert equitable defenses against the United States as it cannot be applied against U.S. land interests.

New York State Assistant Attorney General David Roberts took exception to the United States assertion of title. He told the magistrate that the United States position was not true, that it had never been asserted and the United States had remained silent on it until now. He said that there is no way that the U.S. has claim to lands that lie in New York. Mr. Cooney in response said that the facts regarding the U.S. claim to title was the subject of prior litigation in the case and was no surprise. Mr. Cooney also noted that United States’ interest in the islands is inherent in the claim.

As one of the original 13 colonies, New York State has what is called a pre-emption right to land in the state, a right that is based on the European sovereign claims to discovery. Under the right to pre-emption, the state would have the right to control title. States lost this right to the United States when the Constitution was adopted except in the original thirteen Colonies. The assertion that the United States is making though challenges this right as it applies to the islands in the claim. Mr. Cooney said that the Mohawk islands were not part of New York State when the state was formed, they were under British control in Canada meaning that the State did not gain the right when it was one of the thirteen Colonies. When the Treaty of Ghent was signed almost forty years after the United States was formed, it transferred the underlying title to the islands to the United States on behalf of the Mohawks, not New York State.

Magistrate Lowe asked questions about the disruptiveness of the Island claim. Mohawk Council of Akwesasne Land Claim attorney Harry Sachse shared the history of the Islands and pointed out that for Baxter and Barnhart Islands there has been a history of disruption to Mohawk ownership. He said in 1823, New York State ignored the Treaty of Ghent in giving patent (ownership) to the Ogden family who then evicted the Baxter’s and Barnhart’s from the islands. It also cut off Mohawk access to the islands for hunting and gathering. Mr. Sachse talked about how the New York Power Authority evicted White families from these islands in the 1950s when the Power Project was constructed as a second disruption. He said the final disruption occurred when the islands were flooded by the Power Project and it made them much smaller. Mr. Sachse also pointed out that Long Sault Island was never leased to anyone and that no one was ever paid for it and that it belonged to the Mohawks.

Attorney Kimo Peluso, representing the New York Power Authority talked about the enormous investment the New York Power Authority has made on Barnhart Island alluding that the development would be disrupted by the Mohawk claim of ownership.

Mr. Sachse noted that the Federal Power Act, which governs of the operation of the St. Lawrence Power project, responds to the question of disruption if the court determines the islands are Mohawk. There are provisions in that federal law requiring payments to Tribes when a power project sits on reservation lands. The New York Power Authority would still own the project but they would be required to make substantial lease payments to the Mohawks. Mr. Sachse pointed out that the Federal Energy Regulatory Commission license for the St. Lawrence Power Project actually has a clause in it that if the land claim court case shows that the Mohawks own Barnhart Island, then payments would be made to the Mohawks.

Assistant New York State Attorney General Roberts raised the issue that the Saint Regis Mohawk Tribe had already brought a suit over Barnhart Island in the 1950s and lost that case. Curtis Berkey, Mohawk Nation Council of Chiefs land claim attorney pointed out that neither the Mohawk Nation Council of Chiefs nor the Mohawk Council of Akwesasne were parties to that lawsuit and they are making the claim for the islands.

Magistrate Lowe asked questions whether any of the islands were inhabited and if they weren’t it suggests a lack of disruption. Mr. Roberts responded that they weren’t inhabited but that it would be disruptive to the chain of title.

In closing remarks, Mr. Roberts stated that in regards to the United States assertion that it holds underlying title to the islands, it has not previously made that allegation, that it is an after thought and should not be allowed.

Only time will tell whether Mr. Cooney, on behalf of the United States, has thrown a wrench in the State of New York’s case that they have underlying title to Mohawk islands. Magistrate Lowe is not expected to render a decision before the fall 2011 on whether the Mohawk land claim should be dismissed.