Episode 8: On the Edge of Out of Control

The Mohawk Nation has officially intervened in Derek’s case, and not necessarily in his defense. So whose side are they on?

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Episode Transcript

Speaker 1 (00:01):
Campsite Media. I made my final trip out to see
Derek last February, in the dead of winter. By that point,
he'd been in court battles for almost six years, just
hemorrhaging money to legal fees, and his future in NASCAR
was totally up in the air. He went from racing
at the highest level of the sport with a whole
team of people changing his tires and filling his tanks,

(00:25):
to being suspended and having a bunch of leftover race
motors sitting around in his garage covered in saran wrap.
But a freshly built motor is a terrible thing to waste,
So Derek dropped those NASCAR V eights into old shitty beaters,
put studs in the tires, and got back into a
time honored mohawk tradition, ice racing on the St. Lawrence River.

(00:48):
All right, So down the morning and we are at
Hornwa Marina. We're here to race, baby, and it's it's
fucking cold out here. It's negative too, but luckily there's
a high of seven, so I think we'll be all right.

(01:09):
The whole thing is frozen over. It's gotta be a
hundred cars out here, motorcycles at TVs, trucks, race cars,
and yeah, we're here to see Derrick Rice. Let's gonna
find him. We got a bunch of all beat up
race cars, steel side and steel reinforced painted like old

(01:32):
NASCAR cars. I'm in all, Kevin baby, we're racing. Boogie
boogety boogety. What's going on, same ship, different pile. So
what's your schedule today? Well, they got they got through
the bikes, the four wheelers, then the motorcycles, and then

(01:54):
it's um, the front wheel drive studied class. Then they
have rubber class of small cars, and then I think
it's the outlaw class with the studs B eight and
then it's the rubber after that. So I'm meeting right now.
That's where we're going. We're heading now, and then uh,

(02:16):
then they're gonna start. That's found. I don't festival, no
idea what they're talking about talking about one car, one trailer,
no spectators in the pitcher, something like that. Okay, let's
go race. We're here today Tebruary. We're gonna have some

(02:40):
races going on today. This is my bar off the
driver at ninety nine. Tell me what can factor race car?
Drill running bolt, that's right, Baby. We're the first podcast
to be painted on the side of a race car.
Eat Your Heart Out Radio Lab from Campside Media and

(03:08):
Dan Patrick Productions. This is Running Smoke. I'm Roger Gola

(03:32):
and this is episode eight Riding the Edge. The big
irony of Derek's case is that if he'd just taken
a deal from the prosecution when he was arrested, he'd
probably already be out of jail by now. Like all
the other guys that there was what forty forty or
fifty at them, they all took deals, they all already

(03:52):
did their time. They're own and they're just going on
with their life. And I mean it's gonna be five
years now in April. I'm still fighting. This hasn't been easy,
let me put it that way. It causes a lot
of friction in the house. At one time we were
I was, you know, going to court five days a
week for it was almost two months straight. It's taking

(04:15):
a toll. I mean, it's taken a toll on my family,
my kids, you know, my wife, Hunter the same thing,
his wife, you know, his kids. Everyone just wants it over,
you know. After delays caused by COVID, Derek's constitutional challenge
was finally slated to be heard in the fall of

(04:37):
The mere fact that this case had made it to
the docket was extraordinary. Steve Bonspiel of the Eastern Door newspaper,
I'm actually surprised that Derek's case has gotten as far
as it has, because usually Canada doesn't want it to
go further because they don't want to set that jurisprudence.
If whether he wins or loses, especially if he wins,

(04:57):
it's gonna set up other cases for the future. And
and they're gonna know that they can't just you know,
attack and and target just because they think it's wrong.
You know, he will set a jurisprudence. He will set um,
you know, an example that I can go to court
and beat the government and everything. If he wins, every
single tobacco case is going to use him and and

(05:21):
and you know, every single person who is gonna argue
on our side is gonna say, hey, he beat them,
and here's why and here's why it applies to us.
But at the same time, the risks were very high.
If Derek lost, it could mean empowering law enforcement and
regulation on a big chunk of the Mohawk economy. It
meant putting fundamental rights at risk of being struck down

(05:42):
by the Canadian government, which is exactly why the Mohawk
Nation Council of Chiefs have been trying to get Derek
to drop his case for months. When that failed, the
chiefs dispatched their lawyer and sent him to court with
a formal request for intervention. The Mohawk Nation wanted to
make sure they had a seat at the able and
that they would be able to protect some of their

(06:02):
rights if Derek lost the case. When I talked to
him about their current approach, it's it's not about supporting Derek,
you know, it's about ensuring that Indigenous rights are are supported,
I guess you could say, or are argued. So even
within that, you know the context of having them in
the trial, it's it's not exactly an ally, you know,

(06:28):
having an ally next to you. It could end up
being because they're fighting the same fight, but they're they're
kind of you know, adversarial, so you know, all that
stuff like doesn't necessarily add up to a unified approach
to fight for individual rights or Indigenous rights. I should say, really,

(06:49):
I I don't know what what position there's there at
right now, whether it's going to help me or if
it's going to hurt me. Um, we still don't under
stand what they're what the fight is, you know, like
they said, it's it's a it's the whole nation's fight.
But are they still are they helping me? Are they

(07:12):
basically throwing me out to the wolves, you know, take
a deal or or nothing. So I don't know if
they're hoping I'm gonna I'm gonna win this or already
hoping I'm gonna lose this. It was a question I'd
had for a long time. Is the Mohawk Nation standing
for or against Derek? I needed to know what the

(07:35):
Council of Chiefs had to say, and that's coming up
after the break. Well, my name is guyand with the
Wolf Clan of the anordignation of the Hooded Shawnee. My
name is also Paul Williams, and I practiced law working

(07:58):
for Indigenous Nation. The Mohawk Nation Council of Chiefs or
m n c C has a very complicated history, and
there's a few debates over the providence of its authority.
But the long and short of it is that the
m n c C is the highest traditional authority among
all Mohawk territories. So when you look at all treaties
and documents that Mohawks signed with the French and British governments,

(08:22):
you're essentially talking about the same political entity, and Paul
Williams now represents their interests in Derek's constitutional challenge. After
the Nation Council became aware of the notice of constitutional question,
it took several steps because it really didn't want to

(08:42):
see all these rights at stake in court. It basically
felt this is a matter between nations, which is to say,
between the Canadian State and Mohawk governments. So the first
thing that the Nation Council did is direct me to
write the lawyers for Derek White and Hunter mon Tour
and say please don't make these arguments. And they wrote

(09:04):
back and said we're going to make the arguments. The
chiefs talked it over at length, because every step up
to that point was an attempt to avoid becoming involved
in the court case and to have the matters dealt
with outside courty. There's no room for other people in

(09:28):
the ring. Despite all the attempts that the Mohawk Nation
made to stay out of the courts and keep Derek
and Hunter out of the courts. In the ends, all
those efforts failed. Derek and Hunter were going to fight
this thing, and the chiefs had a tough choice to
make stay out and let Derek roll the dice with
their rights, or do something unprecedented, enter a court system

(09:51):
that was counter to their traditions and take a public stance.
After much deliberation, they asked Paul Williams to make a
formal request to intervene in the case. What is so
remarkable about this case that demanded such op precedentsed action.
It's remarkable because so many rights were being put at
risk all at once. And my reaction was that they

(10:19):
had placed virtually all the hoodren of Shawny aboriginal rights
and treaty rights on the line in the case without
any authorization from any hoodn of Shawny government. And my
reaction was, this is the wrong case to test all

(10:40):
the rights, and because the rights are fragile, when really
needs to build beginning with the most obvious and sympathetic cases,
the ones that are least threatening to Canada. Derek White
and Hunter Montour were charged with six to need other

(11:00):
people who all pleaded guilty number of them were Hell's Angels.
There wasn't just tobacco involved in the case. There were firearms,
they were drugs. Another mark against derek case was the
fact that he had already been found guilty by a
jury of defrauding the federal government. It wasn't exactly the

(11:20):
community's best foot forward in terms of making a Native
rights case, but Paul felt that Derek was forcing his hand.
He made a formal request to the judge presiding over
the case asking for the Mohawk Nation to be represented
in the proceedings, which would allow it to have similar
privileges as the prosecutors and the defense. They could present witnesses,

(11:42):
cross examined, and make their case before judge. And surprisingly,
the judge agreed and the Mohawk Nation was given status
as a full party intervener. Now they had a seat
at the table. And that's that's sort of what's remarkable
that the Mohawk Nation Council of Chiefs was allowed to
intervene at all. It's the first time in Canadian law

(12:06):
in this case the Nation Council became a full party.
And the fact is it's the first time a traditional
indigenous government has been recognized as such as well. The
Nation Council's involvement in the case right from the start
was damage control. It was how do we minimize the

(12:28):
potential damage to this this court could do. I think
that's the way the Nation Council continues to perceive it.
Not our court, not our judge, not our law. One
has to be really careful going into court paror to
what's happening is you're you're ending up with people with

(12:51):
a large amount of money, Individuals with a large amount
of money willing to risk everybody's rights to protect themselves.
This was the theme that kept coming up in the
course of my entire reporting, attention between the rights of
an individual and the rights of a collective. Yes, Derek
has rights as a mohawk person, but does that mean

(13:13):
he's allowed to gamble with the rights that all mohawks
share to defend himself. To Paul Williams, that's a fundamental
question of what it means to be mohawk in the
first place. What is the relationship between individual rights and
collective rights? Who beginning with your name, your name doesn't
belong to you. It belongs to your klan family. Somebody

(13:37):
carried that name before you, somebody will be given that
name after you. That is your your identity is linked
to a collective group of people, and they are responsible
for you and you are responsible to them. For example,

(14:00):
in Moawk, you don't say my name is such and such,
you say young Pits. They call me such and such.
That is my name exists because other people use it.
So really, from from a very fundamental societal perspective, what

(14:20):
you do as an individual constantly relates to the other
people you are living with as your relatives. All this
to say that there's quite a bit of daylight between
Mohawk and Canadian conceptions of how society functions, and there

(14:40):
might be better ways to square the two than a
case involving tobacco and organized crime. We need a conversation
with Canada about how to deal with criminal law, and
this is not this is not the way to have
that conversation. Nevertheless, in September, the judge ga in the
first session of Derek's constitutional challenge. It was held in

(15:04):
a small conference room with a desk for the judge
and five other desks arranged in the middle of the
room for witnesses, lawyers, and court attendants. There was no jury.
The outcome of this case would rest solely on the judge.
One by one, expert witnesses were brought before the court
to give their thoughts on everything from Mohawk grammar to
sense result treaties and archaeological records. Derek brought esteemed indigenous

(15:29):
scholars and leaders to the stand and the government questioned
them intense heavy debates. We reached out to the Crown prosecutors,
but they declined to comments on an open case. The
three parties made their arguments, defended their positions, and cross
examined one another, which took a larger toll on the
Mohawk Nations witnesses than Paul had anticipated. I had to
explain to people that cross examination is a stranger coming

(15:56):
at you in a stiff aliens setting and challenging your credibility.
You wouldn't tolerate that if if this happened in a
restaurant or on the street, and yet in court you
have to It was a foreign concept in traditional Mohawk
legal practice, where decisions are made by consensus among the

(16:17):
three clans. It's a system based on convincing your neighbors
of your perspective rather than proving your opponents wrong again.
It's it goes to the idea that a criminal court
really isn't the place to work these things out. After
weeks of hearing testimony and extremely drawn out closing arguments,
the judge gabbled the constitutional challenge to a close and

(16:40):
dismissed the room. She had heard everything she needed to
make a decision, and promised to deliver a judgment within
a year's time. We're just waiting now from from the uh,
the judge. I look at it this way. The longer
it takes, the better. I mean, if if she knew
I was guilty, she would have came back the next
day and said, you're guilty. So she's really going through this,

(17:02):
you know, with a with a comb basically. I mean,
if hopefully I'm phone innocent of everything, if not, they
should be probably in jail for five to seven years

(17:25):
or something like that. But you know what, instead of
me taking that deal, which I didn't, and if I did,
I would have been sitting in jail right now and
just thinking, you know what, maybe I could have won this,
maybe I could have beat the government for everybody. But

(17:45):
now we're gonna find out. They know that if this
case goes in any way our way, in any one
little part doesn't go there away. They got a whole
new story to rewrite Hunter mont Tour, who's thought this
case alongside Derek every step of the way. They'll have

(18:07):
to change everything and they can't do that. They can't
do it that quickly. So they're going to be like,
what the f are we gonna do? Right? Literally, I
don't know what the hell is going to happen. I
don't know how big it's going to be. It seems
like it's going to be pretty big. A lot of
people are paying attention and understand what could happen when

(18:29):
this is over, good or bad. I don't know what
is the best case scenario for the for the Mohawk
Nation Council. Best case scenario from a Nation Council point
of view is probably the court making a decision that
would call upon the political entities Canada and Quebec to

(18:55):
take steps to restore the treaty relationship, including and dealing
with criminal law, to recognize a hood in a show
need judicial system a criminal justice system again because the
whole system itself isn't working. And what would be the

(19:15):
worst case mm hmm I'm not even going to express
any of you on that. It would give me nightmares.
Either way, it's not gonna be over because if the
government loses their appealing it, if I lose, I'm appealing it.

(19:37):
So this can go on for another ten years or
twenty years. Who knows. We'll make a season two, yeah,
or three or four or five. Hold on, we'll be
right back. Early on in my reporting, a came across

(20:00):
a book by a Mohawk scholar named Dr Gerald di
agate Alfred. There was a line in the introduction that
really framed by thinking for this entire project. I'm paraphrasing here,
but what he wrote was this, being born a Mohawk,
I do not remember a time free from the impact
of political conflict. And from what I could tell, just
about all of that conflict could be traced back to

(20:22):
one fundamental tension between the Mohawk Nation and a Canadian
government that doesn't fully recognize their sovereignty. That disagreement is
the basis for the simple fact of being indigenous. That
everything you do, whether you like it or not, is
a political action. Every decision you make is a stance

(20:42):
that you've taken. It means constantly walking a tight rope.
If you're willing to follow the rules and steer clear
of murky waters, you live a peaceful, uncontroversial life. But
if you make one slip, things can turn hot in
an instant. Derek has been walking that line his whole
life and watching him turn laps out on the ice.

(21:04):
Last year I got to see it firsthand. Derek is
in whole position starting up now, market car green, flag
about to drop. Ye. Derek takes an early leading around

(21:28):
turn one and on the inside turn and he's out
of the corner one, straining it out. It might seem
counterintuitive when we're talking about three thousand pound junkers hurtling
around an icy circle at eighty miles, but when you
get down to it, racing is a game of inches

(21:49):
and fractions. When you've got twenty cars all gunning for
the same first place spot, every little decision to driver makes,
every flick of the wheel and feather of the pedal
adds up, and those split seconds mean the difference between
winning or ending up in the wall. It's a delicate ballet,
dancing on a razor's edge of your grit as a

(22:10):
driver and the traction of your tires how far can
I go in the corner, how early can I get
on it? Where the bump set. It's just studying a
track and concentrating on it, and in each lap, you
know you'd feel a car do something a little bit different.
The tires is wearing out, you know, you change, you
pick up points, and then you drive the racetrack so
much not so much the race car. There's just some
people that just have a natural ability to go, and

(22:33):
they don't have any give an damn, you know, if
h they don't care if they wrecked, they don't care
if they run over something there just after. I think
it's when you go past your limits. The people that
are able to save their cars and not do it,
that's the difference between making them good or great. A
lot of really good drivers over the years seem to
have a some kind of a sense of balance. You

(22:54):
can sort of feel that line between sliding and sliding
out of control, you know what I mean. And the
guys who sort of are able to flirt with that line,
uh longer than the next guy maybe are successful at it.
Holding out way in front number nine nine running smoke.

(23:15):
After decades of racing, Derek knows just how far you
can drive into a corner. He knows how to feather
the pedal to stay out of the wall when you
get back on the gas, and how much the back
end can slide before the front starts to go. His
racing style is a methodical and assertive He knows where
the limits are and pushes them farther and farther until

(23:38):
he's right up on the line between chaos and control.
And in that way, racing is a pretty good metaphor
for what life is like as a Mohawk, or really
any indigenous person in the modern world. It means navigating
a system that is built on your land but which
excludes you, and weaving your way through legal loopholes and

(23:58):
physical boundaries. It means sitting down and gritting your teeth
when you can't win, and standing up to fight when
you can't take anymore. It's a fine art that forces
you to constantly assess your nerve and how far you're
willing to take it. And oftentimes it's those people who
know exactly where the edge is and stick their toe

(24:19):
across that line anyway that end up making a difference.
We are part of a long line of people now
who have refused to surrender, and that will find creative
ways to continue to survive. Dr Alfred the Mohawk scholar
I mentioned earlier because resistance is this constant process and

(24:41):
when you're born into that, it shapes your personality and
it shapes your outlook on the world. And I think
that as a as a mohawk person um in gotten Waga,
there's there's something that is infused into your character, and
that that thing is that idea of the responsibilities you

(25:03):
carry as a Knya Cahaga or as a as a
as a negative person, which is to not let them win.
You have to find a way to really breathe life
into that Mohawk nationhood and push back against the people
that are trying to snuff out our fire. Lap in
second to last place, stretching it out, just digging through

(25:28):
the corners, last lap right here, right here, taking it on.
Derek White, looks like you picked up pretty good. That's
fast running smoke is lucky chime, but yeah's running pretty good.
They have their hands fully try to catch me. And

(25:53):
one question I've been done to ask you do you smoke? No?
I don't, all right, running smokes. A production of Camp
Site Media, Dan Patrick Productions and Workhouse Media. The series
was written and reported by me Roger Gola. Our producers

(26:16):
are a Leah Papes, Blaine Gerbig and Julie Dennishet. Our
editors are Michelle Lands and Emily Martinez. Sound designed and
original music by Mark McAdam, additional sound and mixing by
Ewen Lyon from Ewan. Additional reporting by Susie mccarthney. Our
executive producers are Dan Patrick, Josh Dean of Camp Said Media,
Paul Anderson, Nick Minella and Andrew Greenwood for Workhouse Media.

(26:38):
Fact checking by Mary Matthis and Angelia Mercado, artwork by
Polly Adams, and additional thanks to Greg Horne, Johnny Kapman,
Sierra Franco, Elizabeth van Brocklin, and Sean Flynn