Blackbear

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Tuscarora Indian loses court fight over fishing fine

6/14/2005, 7:53 p.m. ET By MARK JOHNSON
The Associated Press


ALBANY, N.Y. (AP) — A Tuscarora Indian relying on a 1794 treaty lost his challenge against New York Tuesday when the state's highest court ruled he must abide by state law and a subsequent treaty involving another tribe.

Neil Patterson Jr. claimed his rights to fish are protected by the Treaty of Canandaigua, which guaranteed the Tuscarora and the other five nations of the Iroquois Confederacy "the free use and enjoyment" of lands encompassed within the treaty. State regulations would only apply, he argued, if the state proved they were necessary for the conservation of a particular species of fish.

Siding with the state, the Court of Appeals rejected that argument in a 7-0 decision.

The court ruled the Tuscarora lost their rights under the Treaty of Canandaigua when the Seneca Indian Nation sold the land three years later in the Treaty of Big Tree. The Tuscaroras had use of the land only as guests or tenants of the Senecas.

The state cited a U.S. Supreme Court decision that said the Treaty of Big Tree had undone the earlier treaty in a ruling that gave the government the right to take over land for a power project in the 1950s.

"Both the Supreme Court's thorough treatment of the subject and our own study of the pertinent language satisfy us that the Tuscarora enjoy no right under the Treaty of Canandaigua to free use and enjoyment of former Seneca lands," Judge Albert Rosenblatt wrote for the majority.

Patterson was ticketed by a state conservation officer in February 2003 while ice fishing off the tribe's reservation at Wilson-Tuscarora State Park. Patterson did not have his name and address on his ice-fishing gear as required by state regulations.

Patterson was convicted and fined $25.

"The clear language of Treaty of Big Tree and the U.S. Supreme Court decision made it pretty clear that the fishing rights the defendant claimed didn't exist," said Assistant Solicitor General Andrew Bing, who argued for the state.

Patterson's attorney, Christopher Amato, said the decision went against his client's rights as a Tuscarora. About 1,200 members of the tribe live on its 5,700-acre reservation in Niagara County.

"The Court of Appeals has broken new ground in Indian Law in ruling a tribe can be bound by terms of a treaty to which it wasn't a party," he said. "The decision is also inconsistent with Supreme Court precedent on Indian Fishing rights."

Amato said he is considering his options for an appeal.

"The U.S. government and the tribe entered into a solemn treaty more than 200 years ago, and the state of New York has chosen to disregard it," he said. "The bottom line is the fight isn't over."

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On the Net:

Court of Appeals: http://www.courts.state.ny.us/ctapps/





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