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Constitutional government appeals BIA's decision

AKWESASNE, N.Y. - A long-running governance dispute within the St. Regis Mohawk Tribe between the three-chief government and the constitutional government took its latest twist Nov. 29 when the constitutional government filed an appeal of a BIA determination to conduct government-to-government relations with the three chiefs.

The dispute, which has seen multiple referenda, numerous challenges in tribal and federal courts, and two previous conflicting BIA determinations, stems from the tribe's 1995 effort to adopt a tribal constitution. It is a testimony to the chaotic power of imprecise and conflicting legal language.

On Oct. 31, BIA Eastern Region Director Franklin Keel issued a determination that the BIA will conduct government-to-government relations with the St. Regis Mohawk Tribe through ''the Traditional Three Chief Government. In the past the bureau alternately has recognized the Constitutional Government and then the Three Chief Government. These decisions were found to be defective by two different federal courts. ... Both courts remanded the matter to the bureau for further administrative action. ... I am now prepared to render what I hope will be the third and conclusive decision in this matter.''

Whether Keel's hope is fulfilled will depend on a decision by the Interior Board of Indian Appeals, and possibly federal courts, as the constitutional government appealed Keel's determination to the IBIA on Nov. 29.

''The conclusion that the BIA arrives at is wrong. ... The BIA changed the BIA recognition from the validly elected constitutional to the illegal three chief Peoples' government without the 'significant review' of the facts,'' the appeal says.

The group noted that ''the BIA determination does not clearly, nor with any intellectual honesty, determine that the constitution was validly rescinded.''

The appeal asks the IBIA ''to overturn the paternalistic determination of the BIA issued on Oct. 31, which attempted to determine what is best for our Mohawk people,'' and to conduct government-to-government relations with it rather than the three chiefs government.

The three chiefs welcomed Keel's determination with hope that it would bring reconciliation.

''We took the constitution to the people again and again,'' said Tribal Chief Barbara Lazore, who said she was a supporter of the constitutional government. ''I believed in it, but the voice of the people speaks the loudest and carries the most weight. I'm glad we have a decision and I hope that we can now move beyond this issue. The tribe is already moving forward with governance reform efforts and we have high hopes of taking a new governance document to the people at the June 2008 elections.''

''This has been a terrifically complex case with deep roots,'' said Tribal Chief James Ransom. ''I would like to emphasize the fact that it is the votes and the will of the people that was closely examined in rendering this decision. The BIA only agreed with the people here. It is time for the tribe to take a positive step forward and unleash ourselves from the tangles of the past.''

The case has its genesis in April l, 1995, when the three chiefs then in office passed a resolution to hold a referendum on a proposed constitution that a constitutional committee had been working on for years. Part of the resolution said, ''A majority of those present and voting in the constitution referendum shall determine the constitution referendum outcome.''

However, an article in the proposed constitution itself said, ''This Constitution shall be adopted upon certification that fifty-one percent of those present and voting in the referendum called on June 3, 1995, have voted in favor of adopting the Constitution of the St. Regis Mohawk Tribe.''

The results of the referendum were 463 to 446 in favor of the constitution - a clear majority of 17 votes, according to the referendum resolution, but a murky 50.94 percent of the vote, according to the provision of the constitution.

Tribal leaders reached a consensus that the constitution had been duly adopted using the tribal custom and past practice of interpreting a majority as 50 percent plus one vote.

The adoption of the constitution brought with it the establishment of a tribal court and a transition in which most of the members of the three-chief government and its council became the constitutional government.

But with an almost evenly divided electorate, opposition to the adoption of the constitution took shape immediately.

A year later, a member-initiated referendum resulted in a vote of 651 to 339 against the constitution, meaning only 34 percent of those who voted supported the constitution. But the tribal court ruled the referendum to be advisory only because an article in the constitution required a vote by 30 percent or more of eligible voters in order to amend or repeal the constitution.

What followed has been a dozen years of decisions, reversals, referenda, challenges, counterchallenges and cases in tribal and federal courts. The BIA stepped into the fray in July of 1996 and recognized the constitutional government. That decision was upheld by the IBIA, but vacated by a federal court judge in 1999.

Meanwhile, both the constitutional and the three-chief governments appear to have continued to operate; and while the constitutional government continues to meet, it is the three chiefs who have been governing and in control of revenues since 2000.

In a fifth referendum Aug. 28, 214 to 91 members voted no to the question: ''Do you approve of the Constitution document that was presented to the community in 1995?''

The constitutional government's appeal puts the BIA determination on hold until it is adjudicated.