The Attempted Repeal of Article 8

In the aftermath of a civil conflict in Ahkwesáhsne over casino gambling in 1990, the St. Regis Mohawk Tribal Council faced an unexpected threat in the form of external legislation. After gambling opponents testified at a public hearing that the elected Tribal Council was largely to blame for the crisis, members of the legislative commission that sponsored the hearing recommended that the New York State Legislature repeal Article 8 of the New York State Indian Law.

Assemblyman Chris Ortloff, who supported the bill and was also present at the hearings, was quoted in local media coverage as laying responsibility for the murders of May 1, 1990 at the Tribal Council’s doorstep:

“The Tribal Council, under the present system, has misused Article 8 on many occasions. At any point the Chiefs, when meeting with the community don’t want to compromise, they can walk away from the table and say, ‘We don’t need you, we have Article 8.’ Then, when they are talking with the State, they can say, ‘We don’t need you, we are a sovereign nation.’ It was such misuse of Article 8 that led to the deaths of two people.”116

Article 8 never really “governed” the operations of the St. Regis Mohawk Tribal Council, but the threat of having it repealed brought surprising defenders out of the woodwork. One of those was anthropologist Dr. William Starna, who examined the issue in The American Indian Law Review under the title, “The Repeal of Article 8: Law, Government, and Cultural Politics at Akwesasne.” He was quick to dismiss the repeal effort and questioned what effect it would actually have if it were to succeed:

Most of the justifications for repealing Article 8 enumerated in the Assembly’s “Memorandum in Support of Legislation” cannot be sustained in law any more than in history. For example, it is irrelevant whether the present federally recognized government of the St. Regis Mohawk Tribe has a “constitution or bylaws.” A fundamental axiom of sovereignty is the inherent right of an Indian tribe to develop whatever form of government it chooses. Thus, the assertion that state law “controls the electoral process on the reservation,” or that Article 8 “intervenes, inappropriately in the internal affairs of the Mohawk Nation,” an undefined entity, are inaccurate.

In addition, the New York State legislature has overlooked the most basic principle of federal Indian law. All federally recognized tribes began their relationship with the United States as sovereigns whose powers were limited only by the actions of Congress. “What is not expressly limited remains within the domain of tribal sovereignty, and therefore properly falls within the statutory category, ‘powers vested in any Indian tribe or tribal council by existing law.’” The St. Regis Tribe, like all federally recognized tribes, continues to exercise its unextinguished powers of sovereignty. These powers do not flow from statutes enacted by New York State, or, for that matter, Congress.

Finally, there is the federal view regarding the repeal of Article 8. Here it is maintained that any such repeal by the legislature will have no effect, legally or practically, on the federal relationship, which is the controlling relationship between the St. Regis Mohawk Tribe and non-Indian governments. That is, the federal recognition of the tribe and its government is a matter of federal law and solely the province of the federal government. The state has no standing in the issue. Legislative representatives who met with officials of the BIA, only after the repeal legislation was introduced, have chosen to ignore this critical legal point, as have Mohawk Indian opponents of the elective government in St. Regis.117

As Starna noted, the bill to repeal Article 8 passed the Assembly with only four dissenting votes, but died in the Senate.118 In spite of the effort to repeal it, Article 8 of the Indian Law remains on the books to this day.

116  “Law to Repeal New York Indian Law Passed,” Akwesasne Notes, vol. 23, no. 1, 1991, p. 9.
117  Starna, op. cit., p. 307- 308.
118  Ibid., p. 308.

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