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Chiefs lob criticism over lawsuit

The Mohawk Council of Kahnawake sat down with the press this week to chat about issues in Tioweró:ton that could result in a rift between Kahnawake and Kanesatake. (Daniel J. Rowe, The Eastern Door)

Mohawk Council of Kahnawake grand chief Joe Norton did not mince words or hold back his contempt for the actions or attitude of Mohawk Council of Kanesatake grand chief Serge “Otsi” Simon this week, when addressing Kahnawake’s recent court action or the debts Kanesatake has accrued.

“I want to be very kind to our brothers and sisters in Kanesatake, but though I’ll use the term negligence because that’s exactly what took place, the 104 acres became very vulnerable to seizure,” said Norton.

“There was negligence on the part of the Kanesatake councils going back in time leading up to today in settling this matter and paying this lawyer, so we don’t find ourselves being sued, and we don’t find the 104 acres being vulnerable to seizure.”

Norton was referring to the events that led to former Kanesatake Mohawk Council lawyer Louis V. Sylvestre putting a lien on the 104 acres adjacent to Tioweró:ton in lieu of an unpaid $1.3 million legal bill (including interest) for services dating back to the 1990s, as reported in last week’s Eastern Door front page.

Kahnawake’s council filed suit against Kanesatake as well for $1.2 million in unpaid maintenance fees since 1999.

104 Acres:

Kahnawake Mohawk Council lawyer Suzanne Jackson provided media with a timeline of the events leading up to Sylvestre putting a lien on the property.

Jackson explained that a 2004 judgment against Kanesatake meant the community owed the lawyer $536,000 for legal services, and that he had 10 years to execute on the judgment.

In 2007, Sylvestre executed the judgment, giving him 10 more years.

“On February 16 of this year, we were notified by Kanesatake’s current lawyers that Kanesatake currently owed $1.3 million to this lawyer because of the interest that accrued since 2004,” said Jackson. “We were also informed that the lawyer had been informed of the 104 acres.”

Because the 104 acres are not technically reserve land, they are open to seizure as assets belonging to the two communities.

Simon said this week that his council always believed the land to be part of Tioweró:ton, and was surprised to find it not the case.

“We were confident that, no, it’s got to be protected, it’s part of the reserve, and then we later discovered that it was never put under reservation status since 1988,” said Simon adding that he believed it was Kahnawake’s fault for not ensuring it was absorbed into the territory.

Norton was Kahnawake’s grand chief at the time and spoke about why the 104 acres did not become an official part of Tioweró:ton.

“For a number of various reasons, we could not take the 104 acres and include it in what they call the ATR (additions to reserves) process,” said Norton. “It never did get transferred and I think we would have run into difficulties anyway if we were going to transfer it, as part of the Tioweró:ton territory.”

Both councils’ attention were diverted largely to domestic matters at the time with the summer of 1990 and the ensuing years of tension.

Fast-forward to 2017, and Sylvestre’s recent lien on Kanesatake’s portion of the 104 acres.

Kahnawake’s Mohawk Council legal team began looking at how to ensure the land remained in the communities’ jurisdiction after discovering Sylvestre knew about the property.

“Our focus was really how to protect the lands for both communities,” said Jackson. “We didn’t look at this as a Kahnawake-Kanesatake issue. We looked at is as how do we keep these lands in Mohawk hands. How can we protect them from this non-Native lawyer who’s attempting to seize.”

On February 21, the two communities’ councils met to discuss Kanesatake allowing Kahnawake to put a lien on the 104 acres to make up for some of the outstanding maintenance fees. The result would be Kahnawake being the number one creditor on the land ensuring any other creditors – including Sylvestre – could not attempt to seize the asset.

“Unfortunately, they decided not to proceed with this strategy,” said Jackson.

A lien is a right to keep possession of a property belonging to another until a debt owed by that person is discharged.

As it stands, Sylvestre has the lien on Kanesatake’s portion of the 104 acres, and Kahnawake cannot purchase or accept the property legally.

Simon restated this week that his council was weeks away from paying Sylvestre off before he filed for the lien.

If Sylvestre seized the land, it would not affect Kahnawake’s portion. However, it may mean a bill for Kahnawake to secure the land.

“If you co-own property with someone, they could force you to sell, so that’s essentially what could happen,” said Winona Polson-Lahache, chief political advisor for Kahnawake’s council.

The property is valued at just over $285,000, according to Polson-Lahache.

Maintenance:

Kahnawake council chief Clinton Phillips wants both communities to understand Tioweró:ton is for Kahnawake and Kanesatake. (Jessica Deer, The Eastern Door)
Kahnawake council chief Clinton Phillips wants both communities to understand Tioweró:ton is for Kahnawake and Kanesatake. (Jessica Deer, The Eastern Door)

Kahnawake and Kanesatake technically split the cost of maintenance and management of Tioweró:ton two thirds to one third.

Council chief Clinton Phillips explained that Kahnawake pays the full cost each year (around $250,000), and Kanesatake defaults on its share (about $75,000) annually. Indigenous and Northern Affairs Canada (INAC) provides $15,000 for road repairs in Tioweró:ton.

“We’ve billed them every year, and we’ve tried to collect,” said Winona Polson-Lahache. “We’ve had discussions between the councils that occurred, agreements to review the bill, and still no real action.”

There are 296 cabins owned by Kahnawake members, and six by Kanesatake (including the old caretaker’s building, the Oka Inn). There are also approved sites, which have not yet been constructed.

Simon, who became council grand chief in 2011, said previous councils assumed Kahnawake would administer it until Kanesatake got its books in order.

“They were neck-deep in all kinds of problems, and they said that they were going to give the administration of Tioweró:ton to Kahnawake,” said Simon.

“What that meant to us was that until we got our affairs in order here, you go ahead, you administer, but you’ve still got to consult us on whatever work you’re going to do up there, which a lot of times was not done.

“The work was done, and then the bill was sent with no details of what they did it was just ‘here’s your share, pay it.’”

Simon said he wanted to sit down and discuss where the money was going rather than simply paying an un-itemized bill.

“I wanted to talk about what exactly the expenditures were,” he said. “I know it’s a little unrealistic to go back 30 years and look at the billing, but we could have started somewhere… There’s a lot of stuff we agree with, it’s just what is it exactly?”

Kanesatake is part of the Tioweró:ton committee along with Kahnawake that meets often, and discusses everything related to the territory, including maintenance.

Rift growing:

Kahnawake’s council and legal team insists they were trying to help and do not want to build animosity between the two communities.

“We tried our best with council to avoid going to court and, while there is this action in court, there is also the possibility of settling out of court, coming to different agreements of the councils working together and working around this,” said Jackson.

“Just because that action is filed doesn’t mean that’s the only route we’re looking at, nor that it was our first choice. It was really a last resort of being backed into a corner.”

Clinton Phillips was disheartened that an agreement couldn’t be arrived at to account for some of the debt owed by issuing a lien for the debt from Kahnawake to avoid an outside entity threatening the land.

“It would not affect them in any way, shape or form,” said Phillips. “It would not affect Kanehsata’kehró:non because it was for all of our benefits.”

Jackson explained that in February, legal and the Mohawk Council table knew it may look like Kahnawake was trying to take control of the territory, and worked to assuage those fears.

“We understood the position it put them in, and we were open to writing an agreement with them or redrafting our agreement in a way that would protect them,” said Jackson.

“In a way that those fears would be dealt with in a legal agreement, so that, in the future, future councils couldn’t use that agreement against them. We understood those feelings and we were open to negotiating an agreement that would give them comfort in the long term.”

The 104 acres is held in fee simple, is not taxed by agreement with the municipality, and there has always been the understanding that it would be absorbed into the Doncaster reserve: Tioweró:ton.

“I never looked at Tioweró:ton as Kahnawake and Kanesatake,” said Phillips. “It’s for both of us, equally. There’s no divide, so I guess that’s why it’s maddening to me. I believe with our legal counsel and their bright minds we had what we thought was the perfect solution, and they just out of lack of trust in Kahnawake didn’t buy it.”

Norton opined on why Kanesatake wouldn’t accept the arrangement.

“They don’t trust us,” said Norton. “They think that we’ll take the 104 acres, it’ll be ours and we’ll cut them out of the picture. To me that’s what’s in the back of their minds. If not all of them, at least the grand chief. It’s in the back of his mind.”

Norton addressed the apparent mistrust of Kahnawake from Kanesatake.

“There has always been a factionalism that split the community,” said Norton, whose sister lives in Kanesatake with her family. “Unfortunately the leadership for some reason has not been able to sustain any kind of political sustainability.”

The Eastern Door asked Simon if he was concerned of animosity arising between the two communities.

“It’s always a concern, but where’s the animosity coming from?” he said.

Ideally, Simon would like both councils to work together to deal with Sylvestre.

“The ideal solution would be for us to go after this lawyer,” said Simon. “We’re in talks with this guy that we could possibly settle with this guy somehow. I don’t know how because our finances are not that great, but we’ll make every effort to get this guy off our backs and release the lien on the 104 acres.”

Norton knows that at times Kahnawake looks like a bully that is picking on the smaller community.

“Maybe we do, but you know what, it’s their own fault,” said Norton. “You try to shake them up and wake them up and say, ‘come on.’ Christ, they’ve got a beautiful setting where they’re located and they could be doing so well, instead nothing happens there.

“They stay the same way. Fifty years ago, I used to go there and it stays the same way. There’s still such division about who did what to who and why, and it continues on generation after generation. It’s unfortunate.”

danielr@easterndoor.com

Correction: In last week’s issue of The Eastern Door, it said “Simon explained that a previous Kahnawake council wracked up a debt.” It should have read “Kanesatake council.”

Daniel J. Rowe
Daniel J. Rowe is an award-winning reporter and photographer originally from B.C. In addition to journalism, he produces and edits a Shakespeare-inspired blog and podcast called the Bard Brawl. His writing has also appeared in the Montreal Gazette, Canadian Press and U.S. Lacrosse magazine. His facial hair rotates with the season, and he’s recently discovered the genius of wearing a cowboy hat.
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