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Benchmarks: Journal of the New York State Unified Court System

Mohawks To Vote on Creating First Family Court on New York Reservation

BY ANITA WOMACK-WEIDNER

Members of the St. Regis Mohawk tribe will vote in October on a referendum to create the first Family Court located on a reservation and run by Native Americans in the State of New York.  

“There has always been a need for a Family Court,” said James Bay, 32, the commissioner of the St. Regis Mohawks’ Human Services Division, where he heads up $5.6 million in state and federally-funded programs that he says span services from “prelife to death.”

The territory called Akwesasne (“land where the partridge drums,” or good hunting ground) is located in Franklin County and straddles the international boundary with Canada, into Quebec and Ontario. This summer, 1,000 Mohawks narrowly voted to create a tribal court system. In October, members of the reservation will decide if they will start with a Family Court. Russ Jock, St. Regis Mohawks’ Research and Development Coordinator, said he is confident the measure will be approved Oct. 19.

New York law defines Native American tribes as domestic, dependent nations or communities. Tribes are protected by the doctrine of sovereign immunity and cannot be sued without the consent of Congress. Because Indian tribes are distinct political societies, they have the right to make all laws and regulations for the government and protection of their persons and property, consistent with the Constitution and laws of the United States.

“They have executive, legislative and judicial powers that any government would have,” said Judge Stewart Hancock Jr., a retired New York Court of Appeals judge who is now an Oneida tribal court judge. However, while tribal courts may have jurisdiction over most misdemeanor offenses, “anything that would amount to a serious felony would not be allowed in any nation court.”

    THE NEW YORK FEDERAL-STATE-TRIBAL COURTS FORUM

For three years, the Tribal Courts Committee of the Unified Court System, chaired by New York County Supreme Court Justice Marcy Kahn and Bronx County Supreme Court Justice Edward Davidowitz, has worked to help establish the New York Federal- State-Tribal Courts Forum. The forum’s purpose is not only to foster cooperation and understanding between justice systems but also to develop educational programs for judges, tribal chiefs and Native communities; coordinate the integration of Indian Child Welfare Act training for child care professionals, attorneys, judges and law guardians; develop mechanisms to resolve jurisdictional conflicts; and discuss possible inter-jurisdictional recognition of judgments. Tribal nations are being encouraged to include their laws on a tribal-law database. The Forum’s current Native facilitator is Russ Jock. The non-Native facilitator is Supreme Court Justice Hugh Gilbert, Supervising Judge, Family Courts, 5th Judicial District.

If the referendum is approved, tribal members will not only be in charge of all child welfare services including child protection, foster care and adoption, they will also serve as judges after undergoing formal judicial training. “We felt the next step for achieving more independence in how we deal with our kids and our families is to open a Family Court,” said Bay.

The Mohawks want control over a Family Court because this court decides the fate of children, and Mohawks believe the future of their tribe lies with their children. Currently, if the parents of a Mohawk child die and there are no blood relatives on the reserve, the child is placed in a state foster care facility. “In a lot of the state and federal codification ...the interpretation of family is very strict,” said Bay. “If someone is not biological family, it excludes them from the permanency process and it hinders the local options from being included in the process of finding a permanent home. We define our clan, our community, as family. When we set up our own Family Court, we can change the definition of family in the code and keep more children within the Mohawk tribe.” The court will be based on the state model, but Mohawk tribal customs will be incorporated, such as using a peacemaker or elder to create binding resolutions to some disputes instead of forwarding the case to Family Court.

While the Mohawks are intent on sovereignty, their biggest hurdle may be geographical. A treaty between the U.S. and Canada allows Mohawks to freely travel across the border, but the laws of the two countries are different. Bay hopes to have a court system that supports the needs of Mohawk families on both sides of the border. Bay was asked if there were Family Court issues that had been complicated by the border issue. “We have a case right now in which the mother is Mohawk and the father is from another nation, but he has primary custody,” Bay said. “He’s concerned that the mother could take the children into Canada and out of his reach. We need to develop formal agreements that allow our Mohawk children access to their entire range of extended family regardless of which parent has custody and without the complications of cross-border restrictions on jurisdiction.”

Of the approximate 1.9 million Native Americans living in the United States, over 46,000 reside in New York. According to the U.S. Census, 2,699 people live on the Mohawk reservation. Mohawk officials said there's low census participation in the Native communities, and the actual Mohawk population is 4,760.

TRIBAL COURT SYSTEMS IN NEW YORK

Oneida Indian Nation: In existence for about five years, this tribal court has developed slowly, relying on New York’s penal statutes as a model. Their civil code is patterned after federal and tribal court provisions, but they have their own vehicle and traffic law. They exercise jurisdiction only over nation or tribe members on nation land.

St. Regis Mohawks: The Mohawks have a tribal vehicle and traffic code, loosely-based on sections of New York’s, consisting primarily of safety-related offenses. Their code is civil, placing the burden of proof on the ticketed motorist. Penalties are monetary. The court has two peacemakers/judges. Appeals go to the Tribal Council, which also handles all internal land and other disputes.

Senecas: The oldest tribal court system is the Senecas’ Peacemakers’ Court. Earliest reports of New York statutes dealing with Seneca courts date from 1847. Each of the three Seneca reservations — Allegany, Cattaraugus and Tonawanda — has its own Peacemakers’ Court, which handles disputes between Native Americans residing on that reserve. The Allegany and Cattaraugus courts can also hear a case if only one party resides there. They can grant divorces and determine title to real estate on their respective reserves. Judgments are enforceable in New York courts.

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