1996: New Elections, New Referendums
In spring of 1996 the Constitutional Government began to make preparations for the next tribal election to be held in June. On April 10, 1996, they passed Tribal Council Act 96-14, Act Relating to Elections and Voting Regulations, which was an overhaul of the voting system to incorporate the changes of the new constitution. The 28-page document was comprehensive in its scope. In addition to regulations for the conduct of elections and referendums, it included job descriptions, recall procedures, and the oaths of office for all public officials.182
Opponents of the constitution were also getting ready. They began their campaign by circulating an anonymous document titled, NO TO THE CONSTITUTION! Citing the usual rhetoric that the St. Regis Mohawk Tribal Council was a creation of New York State, the authors of the document challenged the legality of the constitution on the grounds that it never received the required 51% of the referendum vote. It also decried the constitution as a sellout of Mohawk sovereignty.183
By April, former St. Regis Mohawk Tribal Council sub-chief, Larry Thompson, his wife Dana Leigh, Lyle David Pierce III, and several other community members had begun to circulate a petition throughout the territory. The petition read as follows:
We the undersigned, question the validity of the Saint Regis Mohawk Tribal Constitution adopted by the Saint Regis Mohawk Tribal Council on June 6, 1995.
Under the authority of the Saint Regis Mohawk Tribal Procedures Act of 1994 Section 12. Referendum, we the petitioners request a recall of the current Constitution, until such time as the question of validity can be determined at a re-vote, in the general election scheduled on June 1, 1996.184
On May 2, 1996, Election Board Member Melvin White and Rick Terrance certified that the petition had been signed by 1,181 people, 1,001 of which were valid.185 By May 31, 59 additional names were submitted and certified valid by Election Board Members Benjamin Kelly, Erma White-Moore, and Cecil Garrow, bringing to the total number of valid signatures to 1,060.186 This certification happened the day after a local newspaper reported that the issue was going back to the community for another vote.187
The Election Board had objected to the referendum question on May 24:
The Tribal Election Committee have reviewed the petition regarding the status of the tribal constitution. Although there are enough signatures in terms of number to call a referendum, we have questions to the wording of the petition itself. It is very confusing. Secondly there is no such thing as implied repeal or recalling a constitution. A referendum petition must be worded as a single clear preposition worded in an affirmative and neutral manner. Otherwise, the community would not clearly understand what is it actually voting for or against.
Accordingly, the Tribal Election Committee objects to the referendum wording as illegal under our present constitution. We do not believe that this or a similar referendum should proceed until procedures for correct use (Article XIII) are adopted by the Tribal Council.188
Their objection seemed to have fallen on deaf ears, because the Tribal Council went ahead and brought the matter back before the voters. At the regularly-scheduled election on June 1, 1996, a referendum was held which asked, “Is the tribal constitution of the Saint Regis Mohawk Tribe valid?” Of the 1008 ballots cast, 339 voted yes, 651 voted no, and 18 were void.189
A legal opinion was immediately sought to determine what the results meant. Tribal attorney Michael Rhodes-Devey gave his legal opinion two days after the vote:
The Referendum determined that the Constitution was not validly adopted. That means that the government of the Saint Regis Mohawk Tribe reverts to the form of government which existed prior to July 1, 1995; i.e., the Three Chief System. Nothing has taken place legally to vacate or void the Three Chief System other than the adoption of the Constitution. Since the Referendum has determined that the Constitution was not validly adopted, the Three Chief System remains in full force and effect until changed by the members of the Tribe.
Since the Referendum determined that the Constitution was not validly adopted, I believe that the Tribe is currently operating under the Three Chief System.190
Rhodes-Devey went on to inform the council that Norman Tarbell, Philip Tarbell, and Douglas Smoke were the current “Three Chiefs” under that revived system:
To ensure stability and prevent challenges to the innumerable acts taken under the Constitutional government, I recommend that Norman Tarbell, Philip Tarbell, and Douglas Smoke immediately convene as the Three Chiefs and pass a resolution reaffirming all of the acts of the Constitutional Government which have taken place since July 1, 1996.
Likewise, since the Tribal Courts upon the Constitution for many of their determinations, I recommend that the Three Chiefs immediately pass a resolution reaffirming all of the decisions and actions taken by Tribal Court since August 28, 1995.191
Rhodes-Devey’s assessment of the referendum’s impact wasn’t shared by everyone. On June 5, 1996, a former Tribal Council chief, Russell Lazore, filed a complaint in the St. Regis Mohawk Tribal Court, contesting the validity of the tribal referendum question. Newly appointed Tribal Court Judge Christine Zachary Deom heard the case and her findings were as follows:
As presented, the ballot question cannot reasonably be interpreted as a repeal of the Tribal Constitution. Repeals in whole or in part of a Constitution must be clear and unmistakable and can never be implied or inferred. By way of analogy, sovereign immunity is never inferred or implied. It always must be clear and specific and narrowly interpreted. As fundamental law, Constitutions are never amended or repealed by implication of any kind.
…The referendum question and outcome does not amend, repeal or abolish the Tribal Constitution. The question presented is clearly one which seeks the opinion of the community and must be regarded as advisory entirely. The Tribal Constitution of the Saint Regis Mohawk Tribe must remain the law of the territory until legally and specifically amended or repealed in whole or in part.192
Regardless, on June 10, 1996 the acting tribal government soon passed Tribal Council Resolution TCR 96-84 Rescission of Tribal Resolution 95-116 (Acceptance of the Tribal Constitution.) This resolution
…revokes [TCR] 95-116 thereby rescinding the certification of the 51% requirement of the results of the Saint Regis Mohawk Tribal Constitution Referendum; and…reaffirms the three chief system of government as a measure to maintain order and essential services for the residents of the Saint Regis Mohawk Reservation; and…acknowledges the make up of the Tribal Council to be duly elected Chiefs Norman J. Tarbell, 3rd year; Philip H. Tarbell, 2nd year; and Douglas A. Smoke, 1st year; and…that the Tribal Council establishes a representative community group to accept, review, and evaluate proposals to govern our community.193
The tribal resolution was signed by Norman Tarbell, Philip Tarbell, and Douglas Smoke and certified by Tribal Clerk Carol Herne. The Saint Regis Mohawk Tribal Council not only reaffirmed the Three Chief System as the official tribal government, but called for a new referendum:
Whereas, the Tribal Council shall authorize and call a referendum to be conducted on June 15, 1996 and agrees to abide by the results of the same, and shall be put forth for a vote by the members of the Saint Regis Mohawk Tribe the following referendum question: Do you favor continuing with our present elected officials?194
On June 15, 1996 the official referendum voting results to the question were as follows:
As a result of this referendum, the Tribal Council was compelled to offer a “clean slate” election to the community. On June 29, 1996 that’s exactly what happened.