Disputed land forces DWI dismissal

By DENISE A. RAYMO

Press-Republican

AKWESASNE — An indictment involving a drunken-driving crash within disputed St. Regis Mohawk Indian land-claim area was dismissed over jurisdictional issues.

Amanda Herne, 34, of Hogansburg crashed her car on St. Regis Road in the Town of Bombay on Sept. 14, 2012.

She was later indicted by a Franklin County grand jury for aggravated driving while intoxicated for allegedly having a blood-alcohol content above the 0.08 percent legal limit, DWI for allegedly having a drunken-driving conviction during the previous 10 years and for speeding.

The St. Regis Mohawk Tribal Police Department investigated and made the arrest, but the incident occurred in an area known as the Bombay Triangle, land Mohawks say was part of the original Akwesasne reservation boundaries drawn up in a 1796 treaty and taken illegally by New York state without proper congressional approval.

The Police Department was established in 2005 with officers having full State Police powers allowed under federal Indian Law, but arrests are limited to the reservation boundaries.

PLAIN LANGUAGE OF LAW

County Court Judge Robert G. Main Jr. presided over a hearing on the police’s jurisdiction and in his ruling said his decision was based on the plain language and intent of the state law that created the Tribal Police.

Defense Attorney Vaughn Aldrich argued that the department’s powers are strictly limited and “absent of ‘hot pursuit,’” the police had no authority outside the reservation, and the indictment against his client should be dropped.

Chief Assistant District Attorney Glenn MacNeill made the case that the police had the right to make the alcohol-related arrests based on two sections of criminal-procedure law.

The speeding charge was not addressed in the argument, so the judge dismissed that count.

‘LIMITED POWERS’

Main also wrote that MacNeill included a footnote citing a recent U.S. Court of Appeals decision that addressed Indian Law that states that Tribal Police officers had no authority to “exercise the duties or functions of a police officer” beyond the reservation.

The judge said he considered that information, reviewed the law that created the department and concluded “nothing in this history suggests an intent to expand the powers of the ... police department beyond the boundaries of the indigenous community it was created to protect.

“The court is led directly to the conclusion that the police authority of the St. Regis Mohawk Tribal Police is definitively limited to the County of Franklin, and further, to the St. Regis Mohawk Reservation.

“Tribal Police officers are truly New York state police officers; they are not substandard in any respect. They have all the powers, within their jurisdiction, of any other New York State police officer.

“But the instrument of their creation … limits their geographic reach, except in circumstances not present here, to the St. Regis Reservation in Franklin County,” Main wrote.

‘RIGHT TO RESPOND’

He said the police were right to respond to the crash since they were the closest law-enforcement entity, but their response “did not include the power to arrest.”

Main said the law intended to create the police force with limited powers, and based on that, “the court is constrained to dismiss the indictment.

“Whether the result is good law or bad law is not for the court to discern,” he wrote. “Whether any change in the law is called for remains within the sound discretion of the (state) legislature.”

But, he said, if Tribal Police suspect a crime is being committed, they can call in “sister agencies who could effect an arrest even upon the sworn statement of responding officers.”

And the tribal officers could, as community citizens, “cooperate with law enforcement and provide statements to their observations” and testify at a grand-jury proceeding to relay their observations to the panel, the judge said.

“In these instances, they would simply be exercising their prerogatives of citizenship and not ‘the duties or functions of a police officer,’” he wrote.