A Controversy Revived
The 2004 decision by U.S. Magistrate Judge David E. Peebles gave fresh kindling to the council fire of the Constitutional Government. Though it by then had become just a smoldering ember, it was still tended by its faithful supporters in regular meetings and elections held in the home office of Phil Tarbell. Opponents of the constitution, who had long since moved on to other concerns, thought that fire had been permanently extinguished and were surprised to learn in early 2006 that the St. Regis Mohawk Tribal Council was in discussions with the “constitutional group” about what to do about this outstanding issue.
The Peebles decision had remanded the issue of which government to recognize—the Three Chief System or the Constitutional Government—back to the Bureau of Indian Affairs. They met with existing St. Regis Tribal Council as well as the constitutionalists and told them that they would indeed revisit this issue, but not before the Mohawks had a chance to resolve the matter internally. This in turn led to a proposal by the St. Regis Mohawk Tribe to hire two independent researchers to write a factual history of the constitutional crisis. This report would serve as a guiding document for a series of public forums in which the community would finally resolve the governance question.
The researcher positions were posted and interviews were held in February of 2006. The two researchers were hired in March and began the task of sorting and indexing the documentation provided by both the St. Regis Mohawk Tribal Council and the Constitutional Government. By 2007, one of the researchers had left the project, but the manuscript was well underway. Drafts were submitted to both groups for their comments on a regular basis. That work must not have been progressing fast enough, because by February, Phil Tarbell wrote to the Department of the Interior:
It has now been three years and nothing has been done to address the issue. As long as that questionable recognition memo exists there is no compelling reason for the so-called three chiefs to address the core issue other than mere window dressing delays. Our community is saddled with the responsibilities of large payments to the State while our Health Services and other Tribal programs suffer from their questionable priorities.
Without this leadership issue being addressed and resolved, the current three chiefs are now considering important commitments and agreements that have a questionable legitimate foundation. Until that “substantive review” takes place, a cloud will remain on all of the so-called three chiefs’ agreements.288
With the possibility of the Constitutional Government bringing contempt of court charges against the Bureau of Indian Affairs for not conducting the “substantive review,” the St. Regis Mohawk Tribal Council resolved to hold a referendum vote on July 21, 2007, asking the question, “Do you want the Tribe to adopt the 1995 Constitutional Document?” The chiefs announced that in contrast to the 1995 vote, they would not require 51% approval to pass the referendum, but would go with a simple majority. They also announced a series of public information sessions as required by their referendum policy.289
An informational booklet generated by the St. Regis Mohawk Tribal Council explained that they would be bound by the results of the vote:
Tribal members will be asked the simple question of whether or not they want the current government to implement the 1995 constitutional document and form of government. If the result is yes, the constitution will be implemented in much the same way it was in 1995, with the chiefs and sub-chiefs assuming positions in the executive and legislative branches of government until elections are held for those positions at the end of their current terms. If the vote is no, the St. Regis Mohawk Tribal Council will continue to implement government reform and improve upon the Three Chief System of government that is in place today.
The decision to call for this referendum vote was not made in haste. The Tribal Council is aware that this vote may not satisfy all of the questions community members may have regarding the 1995 constitutional referendum when this question was first brought to the people. It will not determine who was right and who was wrong, nor will it vindicate anyone’s past actions. What it will do is provide the members of the St. Regis Mohawk Tribe the opportunity to decide what kind of government they want from this point forward, free from the divisive politics of yesterday. In our opinion, this is the most prudent and effective way of finally resolving the issue of the tribal constitution and our tribal governance.290
Unfortunately, the path to the referendum would not be as clear as the chiefs had hoped it would be. Not long after their announcement, they passed a resolution pushing the date of the referendum back by a week. They also changed the text of the question to read, “Do you approve of the constitution document that was presented to the community in 1995?” Furthermore, they announced that the referendum would now require a 51% approval in order to pass, “to reflect the language of the constitution.”291 On July 18, after a motion to delay the vote was put forwarded by a community member at their monthly public meeting, the chiefs announced that they were pushing the vote back yet again to Saturday, August 18.292
They would not be the only people confusing the issue. On June 21, Randy Hart, a member of the Constitutional Government, wrote a letter to the editor of a local newspaper stating that the St. Regis Mohawk Tribal Council would be holding a referendum on the following question: “Do you want the St. Regis Mohawk Tribe to adopt the Tribal Procedures Act of 1994?” His proposed referendum would have been held on the original date of the Tribe’s constitution referendum.293
As expected, the individuals who had launched the 1996 petition against the constitution also came forward to question the latest referendum. Larry Thompson, Dana Leigh Thompson, and Lyle David Pierce III attended all of the public information sessions and gave their views. At one point, Pierce emphatically maintained that their 1996 petition was not to get rid of the 1995 tribal constitution, since that never actually passed, but rather to get rid of the “other” constitution: namely, the Tribal Procedures Act of 1994!
It is interesting to note that these individuals had publicly renounced their tribal membership since the original constitutional crisis. This did not prevent them from paying for newspaper and radio ads to influence the outcome of the governance debate, however.
To further complicate the issue, it was revealed that the St. Regis Mohawk Tribal Council had secretly commissioned a former New York State Attorney General, Dennis Vacco, to “investigate the historical record surrounding the creation of a Saint Regis Mohawk Tribal Court System (“Tribal Court”) and various attempts to undermine its validity and authority, including particularly the role Park Place Entertainment…” Vacco concluded that the Tribal Court “was never validly dissolved.”294
Vacco’s report, dated May 23, 2007, provided a detailed chronology of the machinations of Park Place Entertainment Corporation to thwart the St. Regis Mohawk Tribal Council’s partnership with competing casino developers, Catskills Development, LLC; Mohawk Management, LCC; and Monticello Raceway Development Company, LLC; collectively known as the Monticello Group. Vacco drew heavily from the files of former Tribal Council attorney Bradley Waterman, the lawyer who forcefully argued the case of the People’s Government for BIA recognition.295
Vacco, it should be noted, is a litigation trustee with the Catskills Litigation Trust, an entity with whom the St. Regis Mohawk Tribal Council formed a partnership to pursue a default judgment in Arquette et al. v Park Place Entertainment Corp., a case heard in the St. Regis Mohawk Tribal Court. This Joint Alliance Agreement was signed January 24, 2007 between “Catskill Litigation Trust, a Delaware Trust (the “Litigation Trust”), Barbara Lazore and Phil Tarbell as representatives of the “Tribal Court Litigants”…and the St. Regis Mohawk Tribe, a federally recognized Indian Tribe (the “Tribe”).”296
The judgment in question is now in the billions of dollars, thanks in part to interest accumulated since the original Tribal Court decision, but even the possibility that individual tribal members (as the class represented in the suit) could reap a potential financial windfall did not deter opponents of the Tribal Court from attacking its “revival” in the local media.
Meanwhile, the looming referendum continued to bring more confusion and fear-mongering out in the local press. A paid political ad warned community members that the Tribal Court “…will recognize outside judgments, forcing sale of land, property and possessions. A tribal court can also garnish your wages…A tribal court can seize your land and have your family removed from the premises…A tribal court has authority to take away tribal membership and individuals are left without due process because federal courts have refused to revisit such issues.”297 A billboard near the main highway passing through the community asked of the chiefs, “What part of NO don’t you understand?” In addition to radio appearances and advertisements, Larry and Dana Leigh Thompson spearheaded another community petition to block not only the constitutional referendum, but the release of the constitutional research project you now hold in your hands to any outside entities.
When the referendum was finally held on Saturday, August 18, 2007, there was a low voter turnout, thanks to a boycott by both the pro- and anti-constitution factions. According to the official results released by the St. Regis Mohawk Tribal Council’s public relations officer, 214 community members voted no, 91 voted yes, and 3 votes were spoiled. It was hardly the resounding, decisive conclusion the chiefs had sought.
Constitutionalist Randy Hart saw the referendum results as a victory to his faction, as he told The People’s Voice newspaper:
The results of the August 18, 2007 referendum question sponsored by the St. Regis Mohawk Tribe clearly shows that the Constitutional Document was approved by the Tribal membership, and thus, the Constitutional Government remains the rightful and legitimate government of the St. Regis Mohawk Tribe…Thirty-percent of the eligible voters of the St. Regis Mohawk Tribe failed to turn out for the vote. According to the Constitutional Document regulations, any referendum vote held by the Tribe must comply with the thirty-percent eligible voter clause. This referendum vote failed to reach that level of participation, and by default, it leaves the Constitutional Government as the rightful governing structure. Our supporters knew this. That is why they stayed home.298
On August 20, 2007, BIA Eastern Region Director Franklin Keel wrote to both the constitutionalists and the St. Regis Mohawk Tribal Council to inform them of the process that the bureau would use to arrive at a decision on the outstanding issue as well as to outline the “core issues.” He set a deadline for submissions from both factions of Thursday, September 12, 2007, and a deadline for rebuttals to each faction’s submissions twelve days later.
As you are aware, the BIA has been specifically instructed by the Federal courts to conduct a review of the facts surrounding the 1995 St. Regis Mohawk Tribe’s constitution referendum, including the question of whether or not the 51% requirement had been reached, the validity of the Tribal Court and the will of the people relative to community sentiment for the constitution. These will be the only core issues to be reviewed and decided.299
Keel concluded his letter with a statement that was both decisive and ambiguous:
I remain steadfast in my position that the BIA should avoid matters which are internal to the St. Regis Mohawk Tribe. In keeping with my position, I will only consider the issues identified by the Federal courts.
Notwithstanding any unresolved issues, I am hopeful that I will reach a decision on this matter sometime in the month of October 2007.300
Could the BIA—and specifically, Franklin Keel, the man responsible for some of the controversial decisions throughout the conflict—come to some kind of decision that would result in an actual change to the governance structure of the St. Regis Mohawk Tribe? Could he come to a decision in contrast to the results of the referendum? The council itself seemed hint of this possibility in their August 24 announcement of the official results of the referendum:
The results of the vote will be communicated to the BIA as one factor to be considered in the agency’s final analysis as it decides which of the two governance structures—the Three Chief system or the Constitutional system—it will recognize as the valid governing authority.301
It would seem even to the most casual observer of this saga that no bureaucrat on earth would dare to prolong such a contentious political conflict by reinstating the self-appointed “Constitutional Government” against the wishes of the voting public…yet this seems to be exactly what its adherents believe may yet happen. Talk of a “rightful government” sounds reminiscent of “rightful kings” in exile, something steeped in the romance of a by-gone era, not the realm of modern political possibilities.
The BIA may indeed determine that On-kwa-ia-ne-ren-she-ra was legally signed into existence by the three chiefs—the rightful kings of their own time—back in 1996, and everything done to remove it since that time was based on flawed legal thinking. The BIA may determine that its own actions—or inactions—were erroneous. But is it possible that they would attempt to undo those errors by making a decision that would result in another ten years of community upheaval? Even Keel refused to go that far in his letter to the chiefs.
What may ultimately result from all of this wrangling is that we may end up with a new tribal constitution, one that is created from a new committee of interested tribal members and agreeable to a modern political palate, something that consciously avoids the flaws of the previous document, such as the 51% approval requirement, the confusing terminologies of “chief executive,” “vice-chief,” and “legislators,” and the steep voter turnout requirements for amendment or even repeal. It will be a document that avoids any mention of “federal law” or anything else that smacks of a BIA cookie-cutter. More importantly, it will respect the rights of those who refuse to be a part of the elected system—Longhouse or otherwise—who live within the same territorial jurisdiction. It will be, in short, something we can all live with.If a new and improved constitution does indeed become the ultimate solution to our political woes, there would be no better tribute to those individuals mentioned throughout this history who no longer walk among us: Carol Herne, Julius “Speed” Herne, Charlie Terrance, Erma White-Moore, Russell Lazore, Lincoln White, Leonard Garrow, and many, many others. We owe it to them to light a new kind of council fire.
288 Phil Tarbell to Honorable James E. Carson, Associate Deputy Secretary of Indian Affairs, U. S. Department of the Interior, February 9, 2007. Photocopy submitted by Phil Tarbell.
289 “Tribal Referendum on 1995 Constitution,” The People’s Voice, June 8, 2007.
290 SRMT Information Packet, June 12, 2007.
291 SRMT Tribal Council Resolution TCR #2007-56, certified by Tribal Clerk Patricia Thomas on June 28, 2007.
292 SRMT Press Release, July 18, 2007.
293 Letter to the Editor by Randy Hart, Indian Time, June 21, 2007.
294 Dennis Vacco, Investigative Report presented to the St. Regis Mohawk Tribal Council, May 23, 2007. Photocopy submitted by Dana Leigh Thompson.
296 Marlene Arquette et. al v. Park Place Entertainment et. al, Case No. 00-CI-0133GN, certified copy by Donna L. Cole, St. Regis Mohawk Tribal Court Administrator, June 15, 2007. Photocopy provided by Dana Leigh Thompson.
297 Paid Political Advertisement, The People’s Voice, August 17, 2007.
298 “Constitution Remains Dead: Tribal Members Vote No.” The People’s Voice, August 24, 2007.
299 BIA Eastern Regional Director Franklin Keel to Chief St. Regis Mohawk Tribal Council, August 20, 2007. Photocopy submitted by Phil Tarbell.
301 SRMT Press Release, August 24, 2007.