A Referendum Challenges the Authority of the Tribal Court
Tribal politics continued to interest the local non-native media. The Daily Courier-Observer ran an article on November 22, 1996 about the efforts of the People’s Government to conduct a referendum on whether or not the Tribe’s court was valid. “Mohawks to Judge New Judicial System” quoted Chief Alma Ransom:
According to Ransom, the authority of the tribal judicial system was challenged at the Oct. 5 tribal meeting, and received enough support then from the floor to go ahead with the referendum.
Ransom explained that the Tribal Council was required to hold three public meetings and she said members of the Constitutional Government wanted to be involved in the meetings.
“They haven’t met with the public yet,” she said.
Recognized Tribal Chief Phil Tarbell said he has no intention at this time to get involved in a public debate on an issue which has already been decided.
“I believe we have valid authority (to appoint the judge),” he said, noting every Tribal Council official at the time made the decision. “We were all in on every discussion and process. We interviewed extensively and appointed the best candidate.”
“Her (Judge Christine Zachary Deom) decisions were legal under the existing tribal law. I stand behind the decision to do it,” he said.
Ransom, however, maintains that the number of people signed the petition questioning the validity of the court system has to be considered. “A petition with that many signatures has to be recognized. It is the law of the land,” she said, noting it does not have to be officially approved by the Bureau of Indian Affairs (BIA) recognized government, or the Constitutional Government.212
In an article carried by The Watertown Daily Times on November 29, Sub-Chief Barbara A. Lazore of the People’s Government noted that the outcome of the referendum would send a strong message to the federal government regarding their recognition of the Constitutional Government:
“The BIA will have to change their minds,” Mrs. Lazore said. “If we have a free, democratic society here, they have to go by the will of the people.”213
Phil Tarbell, on the other hand, openly disputed the validity of the referendum called for by the unrecognized People’s Government:
“It can’t be a referendum because nobody besides (Tribal Clerk) Carol Herne has approved it,” Mr. Tarbell said. “It hasn’t been approved by council and I haven’t even been approached about it.”
The question is ambiguous and improper because the judge was legally appointed, Mr. Tarbell said.
“They got their butts kicked in the courtroom when she was judge,” he said. “Rather than appeal, their attitude is to dismantle the system.”214
The required community meetings were held on November 26 and 29 and the referendum took place on November 30, asking the question, “Did the Judiciary of the Saint Regis Mohawk Tribe Act Under Valid Tribal Authority?” The results were as follows: 17 voted yes, 394 voted no, and one vote was invalid.215
The results bolstered the People’s Government, but did not phase the Constitutional Government, who showed up for work as usual the following Monday. The Watertown Daily Times reported what happened next in article titled, “Indians Board Up Entrance to Government Offices.”
Because the St. Regis Mohawk Tribe’s constitutional leaders did not get out of the Community Building on Monday when they were asked to do so, tribe members took steps to try to make sure they stay out today.
Big pieces of plywood held down by screws cover the two doors into the offices occupied by the federally recognized government of Chief Executive Officer Edward D. Smoke and Vice Chief Rosalie Jacobs.
“Closed and sealed by order of the St. Regis Mohawk Tribal Council,” says a notice stapled to the doors signed by the leaders of the rival government, Alma Ransom, Hilda E. Smoke, and Paul O. Thompson.
The action came after a tense day inside the Community Building, when a group of women stormed the offices of Mr. Smoke and Mrs. Jacobs. The constitutional leaders refused to step down, so an angry group of 40 community members returned Monday night with the building materials to try to make sure the leaders will not be able to return.216
The Constitutional Government, in spite of this embarrassing setback, continued to maintain that they were still in charge, and would continue to retain signing authority for tribal programs. On December 5, a local paper reported that the BIA would continue to recognize them in spite of the recent actions:
“Once the BIA has made a decision, we’re not going to revisit that decision,” said Kaye Armstrong, area tribal relations specialist at the BIA’s eastern area office in Arlington, Va. “They’re like cement.”217
On December 9, the People’s Government’s attorney, Bradley Waterman wrote to Dean White of the BIA to explain why the BIA’s recognition of the Constitutional Government was wrong:
We cannot discern the Acting Eastern Area Director’s motives. We can say, however, that his actions have undermined whatever confidence the Mohawk people had in the BIA’s impartiality and objectivity. There is strong sentiment within Akwesasne that the Federal government’s policy of self-determination and self-governance is applied only selectively, and is inapplicable to the Mohawk people.
The Acting Eastern Area Director’s refusal to accept the outcome of the referendum is especially ironic in this particular instance. The governmental structure envisioned by the constitution was patterned after the Federal system. That system was designed to establish and maintain a balance of power among the executive, legislative, and judicial functions of government, and in that way, to preserve and protect the ultimate decision-making authority of the people. The Acting Eastern Area Director’s decision is rooted in a refusal to abide by the decision made by Mohawk people at the ballot box. He has condoned and furthered a violation of the fundamental principle underlying the constitutional system of government--ultimate decision-making authority rests with the people.
Perhaps the Mohawk people should be governed by a constitution or some other written document. That decision rests with the Mohawk people, not the Federal government. Indeed, those who most strongly supported the rejected constitution should be most offended by the Acting Eastern Area Director’s Decision.218
On December 16, Tribal Clerk Carol Herne wrote a letter to Dean White of the BIA’s Syracuse field office in which she explained that the referendum procedure of November 30, 1996 was conducted in accordance with applicable tribal procedures of the St. Regis Mohawk Tribe. The BIA wrote to Ed Smoke ten days later to request written comments on the legality of the recent referendum:
The Bureau is aware that of the internal conflicts that the St. Regis Mohawk Tribe is currently undergoing concerning the tribal constitution and is of the understanding that the November 30, 1996 referendum procedure is a point of controversy within the Mohawk community.
Therefore, I would like to at this time to give you the opportunity to provide the Bureau of Indian Affairs with written comments as to whether or not the November 30, 1996 referendum procedure was conducted in accordance with the accepted procedures of the St. Regis Mohawk Tribe.220
The Constitutional Government responded to the BIA on January 15, 1997:
Should the documents submitted to you by the June 29th illegal government and its counsel Brad Waterman be considered by the Bureau or accorded any standing at all? The answer is NO. An elementary principle of sovereignty is that only one sovereign can lawfully govern a defined territory or jurisdiction. Conversely, two cannot govern the same territory or jurisdiction.221
The authors held that their form of government was supported in different forums and legal settings that prove that the constitutional group is the legitimate and lawful authority for the Saint Regis Mohawk Tribe:
The issue of who may govern and take official action on behalf of the Saint Regis Mohawk Tribe has been conclusively decided by three different forums from different perspectives. Two different Tribal Court decisions have settled the status of the Tribal Constitution and who is entitled to govern on our reservation. Subsequently, the BIA Area Director and the Interior Board of Indian Appeals have affirmed the judgments of our own Tribal Court in terms of recognition by the United States.222
In a second letter on January 29, the Constitutional Government added supplemental information to their January 15 submission. Specifically, the group refuted statements submitted by Bradley Waterman on behalf of the People’s Government. It states:
Mr. Waterman contends that we have not submitted comprehensive written statements of our position over the past several months. However, determinations were reached that acknowledged the Constitution as the ‘Law of the Land’. Consequently, our planned submissions were rendered moot. The decision of the Eastern Area Director and later the supportive decision of the Interior Board of Indian Appeals upheld our efforts and decisions of self-governance of our own Territory.223
The letter goes on to allege that Bradley Waterman’s actions on behalf of his clients have only served to make the situation murky rather than helping to clear up the issues:
His (Waterman) constant pleadings to the various departments of the federal government have been to no avail, with the exception of creating internal confusion and turmoil for the Tribe.224
Then on February 7, 1997 the BIA sent a letter addressed to Carol Herne, who at the time was the Tribal Clerk of the Saint Regis Mohawk Tribe, where they expressed a desire to take a step back from the dispute in an attempt to show respect for self-governance:
We will not continue review of the materials that purportedly support the referendum procedure conducted on November 30, 1996 because to do so would be an unjustified interference in internal tribal affairs. The Mohawk Tribe has ample government institutions, including a tribal court, that it may utilize to resolve this matter. The question of whether the November 30 referendum was in compliance with tribal law is a question that can be answered by resort to the tribe’s own governmental mechanisms.225
But at the same time the BIA maintained their position in terms of what tribal government they intend on supporting:
The Bureau is willing to accept changes in tribal leadership provided that such changes occur in accordance with tribal procedures and policy. Since it has not been conclusively shown by authoritative tribal processes that changes in tribal leadership were brought about by the November 30 referendum, the Bureau’s position as expressed by the Area Director’s July 26, 1996 letter is unchanged. The Bureau continues to recognize that the tribal constitution is the lawful governing document of the St. Regis Mohawk Tribe as determined by the St. Regis Mohawk Court.226