Opinion
20904
02-13-2013
The People of the State of New York, Plaintiff-Respondent, v. Rodger T. Thomas, Defendant- Appellant.
Appearances:Appellant Rodger T. Thomas, by Michele F. Mitchell, Esq. Respondent People of the State of New York, by Nicole M. Duvé, Esq., District Attorney, Jonathan Becker, Esq., of counsel
Appearances:Appellant Rodger T. Thomas, by Michele F. Mitchell, Esq.
Respondent People of the State of New York, by Nicole M. Duvé, Esq.,
District Attorney, Jonathan Becker, Esq., of counsel
Jerome J. Richards, J.
Defendant appeals from his conviction in Massena Town Court (Crandall, J.) after a bench trial for possessing walleye out of season on April 27, 2011 in the Town of Massena, in violation of Environmental Conservation Law §11-1301(1)(b) [see Appellant's Appendix, hereafter referred to as AA, tab 13]. The case was tried on December 8, 2011.
At the trial Attorney Mitchell initially stated that her role on that day was as an observer on behalf of the Tribe, though she later participated —without objection — as defense counsel, and has represented the defendant on this appeal.
Statements of fact about the trial testimony and exhibits are taken from the transcript, and are hereafter referenced as TR-' followed by the page of the transcript. Environmental Conservation Officer Troy Basford was on boat patrol on April 27, 2011, assigned to check fishermen. In that capacity he issued a ticket to defendant. Basford encountered defendant at the end of the break wall on the St. Lawrence River. TR-8. He further described this location as "near the entrance of the town — or the Seaway." TR-8. He continued to describe the location, noting that there is an unnamed road that goes down to the break wall [TR-9], in the Town of Massena, on the United States side of the border with Canada, which he knew from using maps [TR-9].
Defendant identified himself to Basford by showing identification; Basford identified defendant in the courtroom during trial [TR- 9 - TR-10]. Defendant showed Basford four fish that he had caught, including two walleyes. Basford testified that walleye fishing season did not open until May 1, 2011, so the two walleye caught by Mr. Thomas were taken out of season. Basford asked Thomas why he possessed the walleye out of season, and he said (portion of audiotape inaudible) and he does not follow New York State law [TR-11].
Basford also testified that Thomas said he was fishing in disputed territory. Exhibit 1 in evidence is what Basford described as the Seaway Trail map. Exhibit 1 is labeled as Chart 52: St. Lawrence River/Seaway International Bridge. Basford testified that he regularly used the Exhibit 1 map in his work [TR-11], in order to be aware of the location of the international border.
Although the court tried to have the witness (Basford) mark Exhibit 1 to show where he encountered Thomas on the day of the fishing ticket, the transcript indicates that the parties apparently reached agreement on where it took place, but the record does not reflect whatever was agreed, other than a partial clarification that Basford was talking about the end of the Snell lock when he said that he encountered Thomas near the end of the break wall. [see TR-9, 11 -13].
Exhibit 1 does not appear to have been marked by the witness during the trial to show what location he was identifying as the spot where defendant was fishing.
Defendant then introduced (without objection) Defense Exhibits A and B [included in AA, tab 13]. Exhibit A appears to be a photocopy excerpt from an unidentified treatise about Native American Hunting and Fishing Rights, and Exhibit B is a letter from the St. Regis Mohawk Tribe Office for the Aging, stating that Roger Thomas gave the office for the aging fifteen pounds of walleye fillets for senior meals on April 28, 2011.
Defendant testified [R-18] that Exhibit A expressed the view that it was his ancestral right to fish and hunt in our territory.' Defendant described Exhibit A as being a treaty preserving the right to fish and hunt in what he called the disputed lands, which he then attempted to describe in terms of what had been reserved by treaty with the United States.
Counsel and the court then engaged in some disjointed conversation about the Mohawk position that it is unsettled law as to what are the boundaries of the Akwesasne reservation. The defense then called Ron LaFrance as a witness.
Mr. LaFrance testified that he is a Chief of the St. Regis Mohawk Tribe on the American side of the border. He further stated as follows [TR-30-32]:
"By Ms. Mitchell:
Q. Chief LaFrance, this is Exhibit One. The — this area right here is where (unintelligible) I believe this is the Grasse River (unintelligible). What's your exper — experience in whether that — that part of the river has been fished by the Mohawks historically?
A. It's always been fished. Historically, it's always been fished by our people all the way up and down our territory. I do believe that's part of our territory. If you look at that what [sic] treaty states, there's that, you know, it's six miles square in what is now known as St. Regis or Akwesasne. And plus the Grasse River meadows and the mile squares in Fort Covington and Massena. So that, to me, according to the treaty that we have with the United States government, this falls within that jurisdiction.
Q. Do you believe the St. Regis Mohawk Tribe has jurisdiction in that (unintelligible) to — to regulate hunting and fishing?
A. (unintelligible)?
Q. Does — has the St. Regis Mohawk Tribe exercised that jurisdiction?
A. We have. And we are — we — like Rodger said earlier, we have enacted a non-member fishing regulations (unintelligible). In fact, in other areas on the reserve so that — that, you know, our rights are protected. And —.
Q. If Rodger came to the Tribe and asked you whether or not he required a license to fish there from the Tribe, what would the Tribe's response be to that?
A. No.
Q: Why is that?
A. Because he is a member of our community. He has — he has — he's Tribally enrolled. He's Tribally enrolled on the Canadian side, as well. And — and I think that's enough. As long as you're Tribally enrolled with — enrolled on the American side or the Canadian side or with the Mohawk Nation, I think that's proof enough he is a member of our community.
Ms. Mitchell: Thank you.
The Court: Mr. LaFrance, you stated that, I believe, the Grasse River meadows were part of the territory. And then you also stated Fort Covington what? I didn't get that.
Chief LaFrance: Mile Square in Fort Covington and mile square in Massena, according to the Treaty of 1796."
On cross-examination, Chief LaFrance testified as follows [TR-32-33]:
Mr. Monroe:
Q. "Chief, are you aware of any litigation currently going on regarding the enforcement of hunting and fishing regulations in the disputed territory?
A. No, I'm not.
Q. You heard Mr. Thomas testify that this is an ongoing problem. Is it — is that your experience as well?
A. No, it's not an ongoing problem. I mean, it's just one of those situations that we face. You know, our inherent rights, as he said, are being violated. We were here fishing these waters long before your people came here. And we will be fishing these waters when you and everybody else in this room are gone.
Q. Do you recognize the right of the Department of Environmental Conservation of New York State to enforce the fishing regulations in any of the disputed territory with regard to Native American people that are enrolled?
A. They don't.
Q. Would you explain that, please?
A. They don't come on the reserve to enforce the — their New York State environmental laws and they haven't, at the request of the Tribe. We believe that's part of our territory.
Q. Well, I was specifically asking about the disputed territory. Do you believe that they have the right to enforce the laws?
A. No, I don't."
On re-direct, Mr. LaFrance testified as follows [TR-33-34]:
Ms. Mitchell:
Q. Ron, on that map, is there anything that says that — that shows that there's a line between what — where the D.E.C. would have jurisdiction and — or would it have jurisdiction?
A. No, there's just — the only lines on here are the actual international border line.
Q. Do you know how the D.E.C. determines whether or not they have jurisdiction on or off our territory?
A. No, I don't."
Later colloquy during the trial, involving the Court, Ms. Mitchell, Mr. Monroe (prosecutor) and Chief LaFrance, revealed that there is still pending land claim litigation in federal court over the lands covered by the 1796 Treaty [TR-40].
Appellant's brief offers much new material not offered at trial. Certainly it is of historical and cultural interest, but material other than relevant legal precedent which was not considered by the trial court may not be considered by an intermediate appellate court in deciding the appeal. Appellant's brief also contains many assertions of fact which were not presented to the trial court.
The People's responding brief not only makes these observations and objections, but also notes that there is still pending federal litigation over the very lands in question, and further notes that the complexities of the federal - state - Native American treaties have been the subject of litigation for decades.
Primarily, the People note that the 1796 Treaty between the United States and the Seven Nations of Canada does not explicitly mention fishing rights and does not define with any great clarity the boundaries of the reserved territory. See, for example, Canadian St. Regis Band of Mohawk Indians v. New York, 146 F. Supp2d 170 [ND NY 2001]; St. Regis Tribe of Mohawk Indians v. State of New York, 5 NY2d 24 [1958]; and People v. Patterson, 5 NY3d 91 [2005].
In People v. Patterson the Court of Appeals affirmed a judgment of the Niagara County Court, which in turn affirmed a Town Court judgment finding defendant, a member of the Tuscarora Tribe, guilty of fishing with a tip-up that was not marked with the name and address of the operator while in the water, in violation of 6 NYCRR 10.4(a)(7). While the Court of Appeals' decision [finding that the Tuscarora Tribe had no surviving independent treaty fishing rights, and affirming that defendant's conviction] turned upon analysis of different treaties from the one asserted by defendant here, the analysis and conclusions about the context for evaluating these issues are entirely relevant.
The Patterson Court began by noting that "all Treaties made shall be the supreme Law of the Land" [US Const art VI[2], citing to Missouri v. Holland, 252 US 416 [1920]. The court further noted that "This principle applies with full force to treaties with the Native American nations" (see Settler v. Lameer, 507 F.2d 231, 238 n 16 [9th Cir 1974]. In the same paragraph, the Patterson court wrote that "It is also fundamental that states have sovereign power to regulate hunting and fishing within their borders." Lacoste v. Dept of Conservation of State of Louisiana, 263 US 545 [1924]. Patterson, 5 NY3d at 94.
The court then held that "the [Environmental Conservation Department] regulation may be applied to members of the Tuscarora fishing off-reservation, just as it applies to everyone else who ice fishes within the state." Patterson, 5 NY3d 91, 96. The rationale for this decision was that the court did not find any treaty fishing rights in the treaty asserted by the Tuscarora, and noted that any rights they may otherwise have had were extinguished when the Seneca Tribe conveyed title to the lands to New York State.
Here the May 31, 1796 Treaty makes no mention of fishing rights, and speaks of reserving the right to mills and meadows at the conjunction of the Grass River. If there had been a reservation of fishing rights in the treaty, then the Patterson decision and its antecedents would have required an inquiry into the applicability of the conservation necessity line of cases, but that situation is not presented on the facts of this case.
Massena Town Court correctly held that defendant did not establish that there was a subsisting treaty right for descendants of the "Indians of the Village of St. Regis" [treaty language], whose descendants include the Akwesasne Mohawks. Defendant also did not establish that the location where he was fishing was on territory reserved exclusively to Akwesasne use as part of the reservation. Defendant also did not establish that Basford, as an on-duty agent of the Department of Environmental Conservation, lacked jurisdiction or authority to engage in law enforcement activities at the spot where he encountered defendant.
For these reasons the judgment of the Massena Town Court must be, and is hereby affirmed. So ordered.
ENTER.
____________________
Jerome J. Richards
Judge of County Court
cc:Michele Mitchell, Esq., representing appellant
Jonathan Becker, Esq., Assistant District Attorney, representing respondent
Massena Town Court
Clerk of Supreme & County Courts
This Court notes that the large island in the center of Exhibit 1, labeled Cornwall Island, is part of the Akwesasne St. Regis Mohawk Indian reservation. In the lower left section of Exhibit 1, the body of water flowing northeasterly is the Grasse River, which flows into the St. Lawrence River. Also shown in Exhibit 1 is Snell Lock, part of the St. Lawrence Seaway waterway and system of locks. The land to the north of Snell Lock is within the United States and Town of Massena. While these facts, as noted here, are matters of common knowledge in this county, they are not reflected in either the testimony of trial witnesses or in findings of the trial court, except as noted.