DENISE A. RAYMO
AKWESASNE — The defense has made a motion that a grand-larceny charge be dropped against a Hogansburg man accused of taking land from its deeded owner.
And it is using a pending U.S. Court of Appeals case to bolster its argument, in hopes that, one day, Indian land-claim issues will be heard by U.S. Supreme Court justices.
Lake Placid attorney Brian Barrett filed a motion last month in Franklin County Court to have the charge dropped against his client, William Roger Jock, a member of the St. Regis Mohawk Tribe.
TRAILER ON LAND
Jock, 50, known by the Mohawk name Kanaratiio, is a member of the Kanienkedaka Men's Society, or Mohawk Warrior Society, of Akwesasne.
He was indicted by a grand jury on a charge of second-degree grand larceny for allegedly depriving Horst Wuersching of his property on Route 37 near the Akwesasne Mohawk Casino.
Jock is accused of initially taking more than 240 acres and then another 800 acres in March 2009 by cutting down trees and creating a dirt path into the woods.
He allegedly placed a large Iroquois flag and trailer there, which is used as a retail cigarette shop. A small wooden building was recently built next to the trailer.
The charge refers to theft of property valued at $50,000 or more.
Franklin County Court Judge Robert G. Main Jr. had not made a ruling on the motion as of Wednesday.
According to the County Treasurer's Office, the true-market value for the property at
100 percent equalization is nearly $540,000.
Barrett submitted an omnibus motion with the court that calls the prosecution's grand-larceny charge "a novel allegation."
But he said Jock has not stolen anything because the land is still there, its title had not been transferred, and "there are material facts in dispute."
FOCUS OF DISPUTE
The property lies in an area of the reservation known as "the Bombay Triangle," which is at the center of a federal lawsuit the tribe had been engaged in for decades.
Mohawks contend that reservation lands assigned to the tribe in 1796 were sold off by the state without proper approval in the U.S. Congress.
Barrett said that within a U.S. Court of Appeals case involving Eric Wilson and a 2010 drug bust on the reservation, "the United States government concedes that the Bombay Triangle was reserved for the St. Regis Mohawks in the treaty with the Seven Nations of Canada as part of the reservation."
Barrett said that as a tribe member, Jock has valid claim to reservation land, including the parcels in dispute.
He said that although District Attorney Derek Champagne, who is also an assistant U.S. attorney for the Northern District, "was not aware of the U.S. Attorney's position with regard to the subject land at the time of the indictment, it now appears that even DA Champagne has questions about his ability to make an adequate showing of clear title to the subject land."
USE OF LAND
The defense attorney said, if anything, only a small portion of land in question was disturbed by the introduction of a trailer and elimination of trees and that Wuersching was not deprived of enjoyment of the land.
"Clearly, there does not appear to have been a taking of the land, whether the prosecution can show clear title to the property or not," the motion states.
Barrett said the indictment should be tossed because there is no or limited information about what Jock is accused of doing, other than what is stated on the grand-jury indictment.
There are no details in the paperwork about the amount of property stolen, how he allegedly stole the land or whether Jock acted alone or in concert with others, the motion states.
In a responding brief, Assistant District Attorney Gary Pasqua said the grand-jury proceedings were legally sufficient to support the charges.
He included an affidavit of the title, deed and abstract to the land that Wuersching obtained when he bought the property in 1981.
"He has owned it since," Pasqua stated, adding that Wuersching "has not given this defendant permission nor any member of the Kanienkedaka Men's Society or the Mohawk Warrior Society, the authority, right, license or privilege to enter or remain on the property."
He also included a summary of land-claims law where federal judges have "applied a doctrine of laches to Indian land claims," that is, saying there was too much of a time delay in Native Americans pursuing land claims and that ejecting current owners would be "indisputably disruptive."
Pasqua argues that Jock is not entitled to claim the land as a member of the tribe because "it is not supported by current law. The Wuersching land, it would appear, has been held by private landowners for the most part since the first half of the 19th century."
The prosecution would consent to a Huntley hearing, where the court decides whether any statements Jock gave police are allowed at trial but opposes a hearing to suppress Jock's alleged prior bad acts.
Pasqua also argued against Barrett's attempt to have particulars about the case spelled out because he did not meet the time factor set down by law and because Jock acted both as a principle in the alleged crime and as an accomplice.
Email Denise A. Raymo at: firstname.lastname@example.org