Are Agents of NYS Authorized to Hunt or Just Oppress Seneca? This October 2013, NYS DEC agents and Allegany State Park police actively hunted several Seneca and Native people and issued them criminal charges for hunting on Seneca Nation land. The events allow for a concise discussion on the reserved rights of Seneca Nation citizens to hunt and fish in their aboriginal homelands. These actions make it painfully obvious NYS’s position is that Seneca do not have any reserved rights. In direct contrast, the historical record indicates that the Seneca Nation’s position is these inherent rights, among many other rights, have never been abrogated. History has proven NYS stole our land, and now NYS wants to steal our rights to hunt and fish. There is little doubt that the Seneca Nation is a staunch defender of Seneca land, resources, economy, rights and people. There should be little doubt that the State of New York is a staunch offender of Seneca land, resources, economy, rights and people. Since neither side is apparently confused as to the status of reserved rights, this provides a great space for conflict and confusion. For those who are unfamiliar with reserved hunting and fishing rights, these rights are inherent, predate colonization and include all rights not explicitly abrogated in treaties or other legislation. Pursuant to Seneca customs and traditions, Seneca can hunt and fish on our aboriginal homelands without impediment. This position is backed up by US Federal Indian Law and International Law, which explicitly supports the reserved rights of Indigenous people to hunt and fish in their homelands with minor impediments concerning fishing allocations and endangered species protections. These two positions place a hefty burden on NYS to indicate a time or instance where the Seneca Nation expressly abrogated our right to hunt and fish in Seneca aboriginal homelands. NYS has the added burden to provide the exact date when this abrogation occurred and then provide undisputed evidence that this abrogation was backed up by the United States and Seneca Nation. Additionally, NYS has the burden to prove that NYS enacted its laws with the purpose of abrogating these reserved rights without Seneca Nation consent. NYS can prove neither, yet even if NYS is able to define an abrogation that meets this above criteria, an important question must be asked: why is this abrogation up for NYS to define, especially considering the conflict of interest involved with their unwavering drive to exacerbate conflicts over Haudenosaunee resources, land, rights and activities? Additionally, as an issue of Federalism and considering NYS anti-Seneca history, is it legal/justifiable/ethical for NYS to have any jurisdiction in reserved rights cases involving enrolled Seneca or any Haudenosaunee? Is it a double standard for NYS agents to have qualified immunities when harassing Seneca for exercising a reserved right, yet these Seneca are not protected from criminal and civil actions in State courts when they are obviously exercising a reserved right? Finally, as a matter of government to government relations, NYS is acting in a unilateral, authoritative and possessory manner concerning Haudenosaunee, where all rights are reserved for NYS agents and no reserved rights are recognized in return. While NYS is busy scouring the archives for one Seneca who said “I do not like to fish or hunt” as evidence of an abrogation, one thing is abundantly clear. NYS has never published a position paper stating they seek to end or limit Seneca rights to hunt and fish on their aboriginal homelands. We should assume that NYS is able to determine that the Seneca Nation has always affirmed its reserved rights, and without a documented statement from a NYS head of State claiming to eradicate and/or limit native reserved rights, then NYS has failed to meet a key standard of transparency. The Seneca Nation should expect NYS to state their intentions on reserved rights just as plainly as Native Nations are expected to abrogate said rights in a clear manner. Charging Seneca citizens and forcing them into NYS courts is duplicitous behavior, completely disruptive to Native communities and should be condemned. Yet actions speak louder than words. And we should also assume, through a clear history of NYS aggression toward Indigenous rights, that NYS desires the Seneca Nation to abrogate all of its reserved rights. Specifically, the prosecutions of Seneca hunters up until 1974 and other actions of NYS over the past 50 years indicate an open hostility toward native hunting and fishing rights in their aboriginal homelands. NYS has used its police agents and courts to effectively produce a situation of open oppression of these rights, even though they have not openly stated this was their objective or intention. Essentially, NYS reserves the right to oppress “their Indians”. If NYS fails to adequately supervise, educate and promote Haudenosaunee reserved rights as the law and does nothing to curtail the actions of NYS agents who impede, obstruct or harass such activities, then NYS has produced a legal environment where they are overtly undermining legally recognized rights. NYS has well educated Attorney Generals and an army of lawyers at their disposal so ignorance of these rights is not an excuse. NYS is well aware of how they have actively pursued the implementation of NYS law in an effort to supplant and suppress these rights. Within these laws, NYS has taken the position that they possess the authority to define “hunting” or “fishing” for the Seneca Nation, thus limiting the Seneca Nation’s reserved rights to hunt and fish in their aboriginal homelands, eliminating the governing authority of the Seneca Nation and undermining the US government-to-government relationship. NYS can only do this if they consider reserved rights as not exempt from NYS laws, and instead NYS laws are exempt from reserved rights. This represents a complete reversal of political logic. Imagine if this principle was applied to the US Constitution, then the 10th amendment would not reserve any rights to the States. This State’s reserved rights amendment would be rendered absurd and meaningless. Thus, NYS is barred from claiming their laws are exempt from the application of a reserved right, which means the Seneca Nation must be included during any discussion about laws that NYS considers exempt from reserved rights, if any, and then specifically cite the authority within Federal Indian Law that provides for these specific exemptions. Without such process in place for the historical record, then it should be left to the Seneca to determine the impediments placed on these reserved rights. For most Seneca, this issue was resolved during the Treaty era when NYS stole our land, yet we reserved all other rights including hunting and fishing. More recently in 1974, our reserved rights were affirmed for our reservation lands. And in 1999, Indigenous reserved rights for all aboriginal homelands were recognized in Federal court. Since no one granted NYS the authority to limit these rights, then NYS needs to instruct its agents on the law of the land concerning reserved rights of Seneca to hunt and fish on private land, on public land, on federal land and on reservation land. Dah nehoh.
Posted on: Mon, 28 Oct 2013 18:10:59 +0000
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