The Referendum Results
The election and referendum were held as scheduled on June 3, 1995. Douglas A. Smoke and Alan R. White were elected as chief and sub-chief. Normally, the horse race that is a Tribal Council election captures the public attention, but this time it was the referendum results that held center stage due to the closeness of the vote.
a. 463 persons voted “YES” casting valid votes
b. 446 persons voted “NO” casting valid votes
c. 14 votes cast were determined to be void
d. 2 ballots were picked up but never cast and are missing. These ballots, if found cannot be counted. They were void by virtue of the fact that they were not voted.
e. 925 Ballots were given out
f. 909 votes were validly cast
g. 10 ballots were determined to be void
h. 50.935093% voted in favor of the constitution
i. 49.064905% voted against the constitution156
The controversy originates in the adoption clause of the tribal constitution, Article XIX:
This Constitution shall be adopted upon certification that fifty-one (51%) of those present and voting in the referendum called on June 03, 1995 have voted in favor of adopting the Constitution of the Saint Regis Mohawk Tribe.157
No sentence in the history of the St. Regis Mohawk Tribe has ever caused as much turmoil as this one. It is debatable that the constitution even needed an adoption clause, since it had to be adopted under the Tribe’s existing procedures to be legal, but it was there, and because it called for 51% voter approval, this exercise in verbiage has resulted in a ten year political struggle, litigation, and untold financial expense.
Two days after the vote, Henry Flood had advised the Constitution Committee and the Tribal Council on the question of whether or not the constitution was approved.
Since the outcome of was 50.935093 in favor verses 49.064906 against, a slim majority of those present and voting has approved the tribal constitution…The most literal outcome is to say that 51% did not vote in favor of the constitution and that the constitution is therefore not approved. But how do you count less than 1/10th of a voter? Counting against the majority is to affirm a minority outcome…What does 51% really mean? When an election is held where the outcome is to be determined by majority vote of those voting, this means majority plus one. Historically majority has been stated as a “majority” and often 51% meaning that you must have one vote more than fifty percent because persons have argued over what the word majority means. Certainly, the Constitution Committee deliberations and discussions have always contemplated that a majority of those voting would determine the constitution election outcome. Obviously, if 50% voted Yes and 50% voted NO, a tie vote would mean non-approval because a tie vote is less than a majority. But anything over 50% is a majority.158
The question of whether or not the constitution had passed by 51% was the subject of debate in a meeting held on the 5th of June with the Tribal Council, the Constitution Committee, and community members.
Charlie – I’m here to state that the certification of this election that went through should be done here at this meeting. Irregardless of the numbers that went through, we still come up with 51% which is the valid number of votes that would pass this. I want to read a passage from our expert, obviously if 50 per cent voted yes and 50 percent voted no a tie vote would be non approval because a tie vote is less than a majority but anything over 50 percent is a majority, now if you want to dispute that you are open for discussion, I’m still here to have this vote certified and there is no other way to change my mind.
John Loran - As far as I’m concerned it’s certified and if you want to take a poll here and see who has a problem with it and who doesn’t, then we’ll discuss the problem, we can do it that way.159
Discussion focused on how spoiled ballots figured into the mathematical equation. It was generally agreed that they weren’t counted and did not effect the total percentage of yes votes. This did not sit well with Tribal Clerk Carol Herne.
Carol T. Herne – Those people, I look at them that they abstained but also you’re letting a choice but the magic number – but the way I see this is that 51 percent and we did not get the 51 percent.
Ricky – We also did not get 50 percent no’s either.
Carol – I recommend that we do – what we’ve accomplished is, people are now looking at this constitution.
P.J. – Why did we have this vote just to bring them in here just to get them to look at.
Carol – No, get the people to decide if they want to go 50 percent or 51.
Alma – Why?
Charlie – Another referendum.
Carol – We’ve already got a conflict here.
P.J. – We got a conflict here because we don’t have no Tribal Laws regulating this to begin with.
Carol – We can’t even use this constitution because we don’t have a judiciary.160
Community member Rudy Hart also weighed in on the debate:
Rudy – Before you get away from the debate on the small percentage and I just want to make this statement, my greatest fear in this whole thing is, we say that this is a great vote to go with, we cancel the old system, we trash it, it’s gone, we go with this new system, a year or two goes by, we have a squabble over some of the Federal grants, maybe it’s between me and Norman, I take him to court, it’s part of my lawyer’s deal, he slaps on the table, he says to the judge, look at the way they counted those ballots and look at the way they used their math, and the judge will say, this isn’t even legal.
John – What the judge will say is, “look, the three Chiefs sitting at that time were law,” if they decided if that document was good, it is good, that’s it…Also if you compared to the election now for chief, if a chief wins by one vote, he wins.
Rudy – That’s right, but see somebody should never have put this section in, once they put this in they put us in a whole new ball game.161
While some split hairs over percentages, committee member Alma Ransom wasn’t buying any of it:
Before you go making any more decisions or getting any more opinions, consider this, when you go to the paper, when you make a press release, consider what’s going to happen and how foolish we all look and our credibility goes down the tubes when you go to the paper and say, “Unfortunately, we don’t accept the referendum because we’re concerned with a measly one percent or point, point, point, this and that percent of a vote.” I haven’t heard one article anywhere, in the radio, the paper, that is questioning this thing from passing, I couldn’t believe it when I heard it yesterday when somebody was questioning it and how silly and unstable we really are, think of it, you guys are running for re-election, think of what you are going to do, what kind of credibility you have when if you don’t win the game doesn’t go on and you’re going to fight it, we got allot of people that have their hearts in the success of this reservation, insurance is not insuring these places because we don’t have a Constitution. Call it our law or any thing you want to call it but we need these regulations more than we have and that is the choice of the people. Think how stupid you sound when you go outside with the news people and say we can’t get those figures right we need a mathematician to come here and take care of this.162
Ransom’s pointed comments seemed to quell the debate on the issue, because the remainder of the meeting focused on the transition from the old system to the new. The following day the three chiefs made the passing of the constitution official. They signed off on Clerk Carol Herne’s certification of the referendum results:
I further certify that a majority of those present and
ballots voted in favor of adopting the tribal constitution. I further
certify that 51% under our current election procedures and tribal
voting tradition, means 50% plus one. I further certify that the
proposed constitution is adopted by a majority of the Mohawk people.163
156 SRMT Tribal Council Resolution TCR #95-116,
Referendum and Election Certification, June 6, 1995. Index # TC—II—31..