The U.S. attorney generals office has filed a memorandum disagreeing with a federal magistrates recommendation that portions of the decades-old Mohawk land claim be dismissed.
The document, filed with the U.S. Second Circuit Court of Appeals and signed by Assistant Attorney General Ignacia A. Moreno, argues that U.S. Magistrate Therese W. Dancks in September erred in her interpretation of legal doctrine cited as a precedent in prior land claim cases by other Indian tribes against New York state.
The so-called doctrine of laches means that a court can deny a claim in the absence of a statute of limitations if a long delay in making the claim could unfairly prejudice a defendant party.
The precedent establishes that when a Native land claim is made to an area that is primarily non-Native and has a distinctly non-Native culture and character, and the alleged wrongful taking is significantly in the past, re-granting Native sovereignty would create a disruption too extreme to justify.
That is not true here, the Nov. 16 memorandum from the attorney generals office states. Although the Mohawks lost land, they retained a sizeable reservation in the area, never departed the region and have remained a powerful enduring presence both as a government and as a population in the region within the specific land claim areas.
The Mohawks are laying claim to a square mile in the village of Massena, a tract in the town of Massena, two comparable areas in Fort Covington, the so-called Bombay Triangle (which Magistrate Dancks recommended upholding) and Barnhardt, Croil and Long Sault islands on the St. Lawrence River. The Moreno memorandum makes no mention of the Massena claims.
Ms. Moreno argued that Magistrate Dancks incorrectly views the Fort Covington area as having a distinct non-Indian character.
She claimed that the magistrate saw that there had been development since the area was acquired by the state in the 1800s combined with the areas total Native population numbering between 5 percent and 10 percent and took that to mean that the laches precedent warrants dismissal.
Ms. Moreno said that is an incorrect interpretation: the cases on which the precedent is based dealt with areas that the plaintiff tribes had vacated entirely and were far removed from the present-day reservation area. She argued that the court must conduct discovery and compile an accurate record of what both Indians and non-Indians have contributed to area development and use that as part of making a decision.
Ms. Moreno found a number of other issues with Magistrate Danckss application of laches to the island claims.
She said that the magistrates inference that the operation of the Robert Moses Power Dam, which spans from Barnhardt Island to Canada, would be disrupted by the land going back into Native hands is incorrect.
Ms. Moreno noted that the dam is a federally licensed power project and only is leased by the New York Power Authority.
She further pointed to the Federal Power Act, which by design prevents disruption in the event of transference of title of land on which a federal power project is situated. It allows the Federal Energy Regulatory Commission to step in and decide how much rent the Mohawks would get for the island, should the land be transferred.
Ms. Moreno also took issue with who actually owns the islands. She argued that when the islands were given to the U.S. under the Treaty of Ghent following the War of 1812, the underlying title holder is and continues to be the United States, although it resides within the modern-day borders of New York state.
The U.S. signed the Seven Nations of Canada Treaty of 1796, which that year set up the boundaries of the present-day St. Regis Mohawk reservation.
In 1790, the Indian Non-Intercourse Act passed, which stated that only congressional action can alter reservation boundaries.
The plaintiffs in the land claim lawsuit alleged that New York state violated the Non-Intercourse Act numerous times between 1816 and 1845 by buying pieces of the St. Regis reservation, leaving it in the shape it is seen on a map today:
■ March 15, 1816 New York state purchased 640 acres on the Salmon River that had been reserved by the St. Regis Mohawks and 5,000 acres on the eastern border of the 1796 reservation.
■ Feb. 20, 1818 New York state purchased 2,000 acres bordered on the east by land ceded in the 1816 treaty, along with a narrow swath of land through the reserve that today is Route 37.
■ March 16, 1824 The state purchased a 640-acre tract on the Grasse River, in the middle of the present-day village of Massena.
■ June 12 and Dec. 14, 1824, and Sept. 25, 1825 The state bought 2,000 acres of the Bombay Triangle.
■ Feb. 21, 1845 The state bought 210 acres of the so-called Grasse River meadows.
The claim to Barnhardt, Croil and Long Sault islands goes back to the 1783 Treaty of Paris, which ended the Revolutionary War and set the boundary between the U.S. and British North America in the middle of the St. Lawrence River.
The British, prior to the War of 1812, considered the islands to belong to the St. Regis Mohawks. The Treaty of Ghent, which ended the War of 1812, gave the islands back to the Americans. The treaty stated that the rights of the [St. Regis Mohawks] were not to be affected by any resettling of the boundaries, according to court documents.
Over time, New York state doled out chunks of the islands to private property owners, in violation of the Non-Intercourse Act, the Mohawks allege. But court documents state the St. Regis Mohawks were paid compensation in 1851 and 1855 by descendants of the private property owners. New York state paid a stipend for use of the islands in 1856, according to the recommendation.
Eventually, the New York Power Authority acquired the islands to construct the Robert Moses hydroelectric power dam. The defendants allege the construction and partial flooding caused by the project have left parts of them unfit for use, according to the Ms. Danckss recommendation.