Defending Our Hunting, Gathering and Fishing Rights

The case of Roger Thomas should be of great interest to all Mohawks.  If an inferior court in St. Lawrence County is allowed to qualify, if not outright eliminate, the aboriginal hunting, fishing and gathering rights of our people then we lose not only those activities, but our outstanding claims to those territories stolen from our ancestors by New York State.

The argument out forth by Mr. Thomas’s lawyer was, unfortunately, backwards.  First, there is no logical reason to use the Seven Nations of Canada as a defense since the leadership has long held that “agreement” to have no effect on our people since it does not specifically mention the Mohawk Nation and, by the reasoning used by the county judge, without such precise language that document has no bearing on the aboriginal standing of the Mohawks or any other Native person. That “treaty” also fails to mention the Mohawk Council of Akwesasne, the Mohawk Nation Council or the St. Regis Tribal Council so, according to the judge’s logic, it does not apply to any of those entities. The “treaty” is of concern only to the Seven Nations of Canada (now defunct) and no one else. Why would any lawyer therefore argue that Mr. Thomas was fishing within the “reservation” created by the Seven Nations “treaty” when those boundaries have no bearing on the Mohawk Nation? Why was Mr. Thomas cited for fishing on Mohawk waters when he is not a member of the Seven Nations of Canada and exempt from its qualifications?

Second, it is well established that Native people retain all aboriginal rights not expressly surrendered by “treaty”.  There is no proof that the Mohawk people ever agreed to give up their hunting, fishing or gathering rights anywhere within our ancestral territory which consists of all those lands from the north bank of the East Branch of the Delaware River, east of the West Canada Creek, south of the St. Lawrence River and west of the Lake Champlain-Lake George-Hudson River corridor. Since there was no specific cession those options are held by the Mohawk people. This would be consistent with the reasoning used by St. Lawrence County. The county court should have been informed from the outset that it had no standing to even hear this case.

Third, no right can exist without being exercised and, when required, defended. The collective leadership of the Mohawks of Akwesasne should call for a massive fish-in in which as many fishermen-and women-as possible going to the Grasse River to do what we have done since time immemorial.  There should also be an organized initiative to gather plants on the contested areas while hunting on those lands in accordance with our traditions. We have to be prepared to be aggressive in pushing back New York State, which has a bad habit of trying to strip us not only of our lands but our standing as distinct people with unalienable subsistence rights to our ancestral territories.

Fourth, this case should have never been tried in local courts, which have been historically hostile to Native rights. The issue should have been taken to the governor of New York State and to the US federal government. This is a clear breach of the 1794 Canandaigua Treaty in which the US is prohibited from interfering in the use of our ancestral lands. Since that treaty is valid and the supreme law of the land no local, state or federal court, nor any state or federal agency, has the standing to qualify those rights. Since the St. Regis Tribal Council and the Mohawk Council of Akwesasne lack the protection of Canandaigua it is the duty of the Mohawk Nation Council, given its position as a member of the Haudenosaunee Confederacy, to take the lead in this matter with the support of the Tribe and the MCA. A formal complaint needs to be sent to the US by the Nation Council insisting that Mr. Thomas, as Mohawk, has the protections guaranteed by Canandaigua and that New York State has no jurisdiction in this matter.

There is a harsh lesson here: when we agree to take this matter into a court we acknowledge the authority of the court to resolve the dispute. When we concede to New York by applying state laws on Mohawk lands and empowering Native police to enforce state laws on sovereign Mohawk territory we have made a fatal compromise in our standing as separate people.  By doing so we admit we lack the ability to administer to our own affairs without outside interference. If we elect to abide by state laws when we arrest our people for violating New York statutes then send them off to county jails, which we are now doing without question, then why should it come as a surprise when a county judge rules against a defendant who uses sovereignty as a shield?

These compromises will prove to be fatal if they are allowed to continue. We need a people’s assembly to debate this issue and come up with a resolution and plan of action to exclude New York State laws from Akwesasne completely. The contradictions now in effect cannot be logically sustained. We need lawyers who have a background in our own customs, not just US jurisprudence.  How can they be expected to defend our ancestral rights if they have no training in our history or traditional conflict resolution techniques?  It would be like hiring a dentist to do open heart surgery-it does not make any sense and will kill us in the end.