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INDIAN FISHING DISPUTE HAS FIRST DAY IN COURT

When Neil Patterson Jr. stood shivering near his ice fishing gear on a bay off Lake Ontario on a bone-chilling February day in 2003, he wasn't thinking about the state's highest court. Nor did he envision becoming embroiled in a lofty legal debate over Indian treaties that stretch back to the days of George Washington.

He just wanted to catch some fish.

Yet for 40 minutes Thursday, with Patterson watching from the back of the chamber of the state's Court of Appeals, attorneys battled over whether the state had a right to ticket and fine him for breaking a New York fishing regulation.

Though on the surface it's a case over a $25 fine that already has been paid, the stakes are much higher: Do Patterson and other members of the Tuscarora Indian Nation in Niagara County have broader rights than others when it comes to fishing and hunting on ancestral lands that are not part of Indian reservations in Western New York?

"It is a real threat not only to our (Tuscarora) nation's political standing and legal standing, but our nation's culture as well," Patterson said on the courthouse steps after his case was heard Thursday afternoon. He was surrounded by more than a dozen members of tribes from across New York.

Patterson, 30, said he is pursuing his case to end what he calls years of harassment by state environmental conservation police, who he says illegally ticket Native Americans for fishing and hunting on lands protected by rights dating from the Treaty of Canandaigua in 1794. It is a legal challenge, funded by tribes of the Iroquois Confederacy, that his attorneys vow will go to the U.S. Supreme Court if New York's Court of Appeals rejects their arguments.

The legal run-in began where Twelve Mile Creek spills into Lake Ontario at the Wilson-Tuscarora State Park in Niagara County. An officer from the state Department of Environmental Conservation ticketed Patterson for failing to place his name and address on his fishing gear -- as required to ensure that catch limits are followed.

Though charged for failing to put his name on his equipment, Patterson was not ticketed for failing to have a fishing license, because of a state rule that exempts Indians enrolled in a New York-based tribe. Christopher Amato, Patterson's attorney, says that this legal distinction "underscores the absurdity" of the state's policies toward Indians.

Patterson argued unsuccessfully before a Wilson town justice and later in Niagara County Court that as a Tuscarora Indian, he did not have to abide by the state fishing law. He pointed to the 1794 Treaty of Canandaigua, a document that guarantees "free use and enjoyment" of certain ancestral Indian lands in Western New York -- not only to the Seneca Nation, the chief beneficiaries of the treaty, but to the other Iroquois tribes, including the Tuscaroras.

But the Senecas in 1797 sold the lands, including the state park in Wilson, under the terms of the Treaty of Big Tree. As such, the state contends, any rights the Tuscaroras might have had under the original treaty were lost once those lands were sold by the Senecas.

In their line of questioning, the high court's judges appeared skeptical of the arguments made by Patterson's attorney.

"Why is it the guests of the Senecas would get more rights than the Senecas themselves?," said Judge Victoria A. Graffeo.

But Amato said the later treaty involving the Seneca land sale in 1797 did not matter to Patterson's case because the Tuscarora tribe did not sign that treaty and, as such, is still covered by the terms of the earlier Treaty of Canandaigua.

The issues of how much land and which specific properties may be covered -- public as well as private -- are unclear, according to Patterson and his attorneys. Patterson talked of all lands west of the Genesee River being part of land covered by the original treaty.

"This issue happens everywhere Indians live in New York State," Patterson said of what he believes are illegal fishing and hunting rules by the state. He said other states long ago worked out agreements with Indian tribes for fishing and hunting rights on ancestral lands located off the reservation.

In a separate suit brought by a member of another tribe from Western New York, the state's top court Thursday struck down a challenge to a state law banning Internet cigarette sales. The lawsuit, though, was not over the merits of whether such sales are legal, but over an often-used and much-criticized route by the governor to submit bills to the State Legislature without the legally required three-day waiting period before passage.

e-mail: tprecious@buffnews.com

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