Contemporary Issues

Border Crossing Rights

by Darren Bonaparte

On December 21, 1999, the Government of Canada filed a lawsuit in the United States Federal Court against a major American tobacco manufacturer for its direct involvement in a smuggling conspiracy worth at least a billion dollars. Although most of the contraband in question passed through Foreign Trade Zones (FTZs) in Buffalo, Niagara Falls, Liverpool, and Champlain, New York, some of those cigarettes passed through the Mohawk territory of Akwesasne, "The Land Where the Partridge Drums." This community is located on the St. Lawrence River and the border between the United States and Canada. The international news media zeroed in on Akwesasne for the "color" of their stories—focusing on the images of Mohawks loading boats full of cigarettes—but ignored the myriad of issues that go along with any honest discussion of the international border and Mohawk border crossing rights. To understand these issues, one must look at the history of the border at Akwesasne and the love-hate relationship the Mohawks have had with it since it was first drawn.

The Mohawks of Akwesasne remember that when the border between the United States and Canada was drawn through their land following the American Revolution, they were told that the border would not affect them, that it was "20 feet above their heads" and only applied to the non-natives. History has shown that border was actually about four inches above the ground, just high enough to trip the average Mohawk as he walked from one part of his community to the other.

The imposition of the border at Akwesasne resulted in a radical changes that continue to the present day. Both the United States and Canada began to assert authority over their respective "halves" with legislation that enforced elective form of governments and restrictive membership rolls on both sides of the territory. This undermined the authority of the traditional leadership and resulted in the loss of aboriginal rights for those who made the mistake of marrying someone from the other side of the border, which, in Akwesasne's case, could be someone right next door. In spite of promises made that the border would not hinder them in the pursuit of their traditional livelihood, Mohawks soon found their baskets, beadwork, lacrosse sticks, and farm produce confiscated by zealous border patrol agents.

The injustice of these policies has always made Mohawks resentful of the outside authorities, and with good reason: Mohawks have paid for the history of both these nations with their own blood. Mohawk warriors played decisive rolls in the French and Indian War, the American Revolution, and the War of 1812. Mohawk hunters led colonial fur traders and explorers deep within the interior of North America, often at great personal risk. It was Mohawk canoemen who guided Europeans through the rapids of the St. Lawrence, and Mohawk lumberjacks who helped the timber industry get its start. And who can forget the lessons of democracy that inspired the colonists: the patriots at the Boston Tea Party weren't dressed as Greeks but Mohawks. All of these contributions were forgotten by the policy-makers who determined that Mohawk nationhood was ancient history. Mohawks were therefore subject to whatever laws they saw fit to pass.

With the St. Lawrence River passing through Akwesasne, the territory has always been difficult for outside authorities to patrol, especially when one considers that boundaries of two Canadian provinces (Ontario and Quebec) and one American state (New York) converge at Akwesasne in the middle of the river. Geography and economics have conspired to make the territory a favorite location for the smuggling of contraband. Back in the days of Prohibition, it was not uncommon for boatloads of alcohol to get smuggled into the United States by native and non-native alike. Mohawk elders recount that border patrol agents used deadly force to combat the smugglers: the bodies of Mohawk suspects were found floating in the river the next day, riddled with bullets. It is said that even Al Capone had a hand in the alcohol trade at Akwesasne.

Fast forward to the 1950's and the creation of the St. Lawrence Seaway. Hailed as the technological wonder of the 20th century, the system of power dams and navigation locks radically altered the landscape of the river valley. Industrial development soon brought an alphabet soup of toxic chemicals to the river system which destroyed the fishing industry at Akwesasne. Farming disappeared when pollution in the air began to make its way into the plants and animals. Like it or not, the Mohawks at Akwesasne found their way of life changing around them and had to come up with a new way to survive. Mohawks left home to work on high steel, many went away to college, and many became entrepreneurs.

Although life around them was changing, Mohawks found that certain things stayed the same: one of those being the attitude of the Canadian government that Mohawks had to pay duty on goods brought from one side of the territory to another. This resulted in a protest on Cornwall Island, where Canada had constructed a port-of-entry on Mohawk soil. A number of Mohawks were arrested by a phalanx of police officers from Cornwall, Ontario, and taken to jail for blocking the road used by international traffic. Although the issue of duties was not resolved, this action showed Canada that the Mohawks of Akwesasne remembered their history and the promise that the border would not apply to them.

Eventually, some very savvy individuals began to look at the international border and decided to turn what had always been a hindrance into an opportunity. With a nod to those who snuck through the border with alcohol in the days of Prohibition, these aggressive entrepreneurs saw the rise in Canadian tobacco taxes as an opportunity in disguise. Small on-reserve tobacco shops sprang up selling tax-free cigarettes supplied by runners who were able to get them from the United States into Canada, often in the trunks of their cars. The profits from this trade created quick and easy wealth but eventually began to undermine the value system of the participants. The smuggling networks began to expand into drugs, alcohol, and guns. Soon they were moving contraband with boats and tractor trailers.

Meanwhile, the Mohawk leadership decided that the time had come to challenge Canada in court over the issue of Mohawk border crossing rights. A protest was mounted with a caravan and marchers who passed through the port-of-entry without paying duties on a number of household and commercial goods. Grand Chief Mike Mitchell asserted his rights under the Treaty of Amity, Commerce, and Navigation of 1794 (also known as the Jay Treaty), the specifics of which Canada maintained they never legally ratified. While this court challenge worked its way through the Canadian justice system, a new development added even more urgency to the issue of border crossing rights: Canada increased the tax on cigarettes.

By adding even more incentive for people to smuggle, Canada's actions guaranteed that the trade in contraband smokes went through the roof. It was no longer just an "Indian" problem. People of all races were smuggling cigarettes from coast to coast. No longer did non-natives have to go to reserves to buy the tax-free cigarettes, they were readily available everywhere. Corruption reached absurd proportions as non-native police officers and customs agents were snared in smuggling investigations.

Mohawk leaders, meanwhile, watched in dismay as the Canadian government began to focus their attention on Akwesasne and publicly identified the territory as "smuggler's alley." Although Akwesasne was now only one of many access points used by smugglers, the mass media picked up on the romantic and racist image of the "renegade Indian smuggler" and helped to convey the misconception that Mohawks were solely to blame for the loss of Canadian tax revenue. They ignored the fact that for many, many years, the Mohawk leaders had warned the Canadian government that their tobacco taxation policies would lead to the creation of a black market that would exploit Akwesasne's geographical situation. They proposed the creation of a Mohawk border patrol which would protect the community from being used as a corridor for this kind of activity. These proposals were rejected by the Canadian government on the grounds that the Mohawks did not have the legal power to enact such laws.

In 1997, Mitchell's case was finally heard by the Canadian Federal Court. Instead of negotiating a solution with the Mohawks, the Canadian government did everything in its power to undermine the Mohawk position. They even went so far as to call an expert witness who disputed the national identity and oral traditions of the community of Akwesasne. In spite of these insults, the justices ruled that Mohawks did indeed have an aboriginal right to cross the border unimpeded. The Canadian government once again refused to negotiate with the Mohawks on how to implement these rights and challenged the decision. The Canadian Supreme Court announced on October 14, 1999, that it would hear the case.

South of the border, American law enforcement agencies broke up one of the biggest smuggling operations ever. This ring had handled over a half a billion dollars worth of contraband tobacco. One of those who was arrested was an executive of a major American tobacco manufacturer. By November 16, 1998, 16 people had pled guilty.

On December 21, 1999, the Canadian government announced that it was filing a lawsuit in U.S. Federal Court under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO) against RJR-Macdonald, Inc., RJ Reynolds Tobacco Holdings, Inc., several related companies, and the Canadian Tobacco Manufacturers Council. They claimed that the RJ Reynolds companies "defrauded the Canadian people by conspiring with known distributors and smugglers to illegally smuggle their tobacco products into Canada. Furthermore, the Government of Canada claims that the Canadian Tobacco Manufacturers Council acted as an agent for RJ Reynolds in this scheme."

Based on the affidavit of RJ Reynolds executive Leslie Thompson, who was convicted for his role in assisting a multi-million dollar smuggling network, the Canadian government is seeking at least a billion dollars in damages for lost revenue. They contend that the American tobacco manufacturer set up a company in Canada to provide tax free "export only" cigarettes which were the smuggled back into Canada. They also contend that the Canadian Tobacco Manufacturers Council, which had many RJ Reynolds executives as members, threw Canadian investigators off the trail of the tobacco companies by publishing reports that claimed the tobacco smuggling was controlled by "organized criminal groups such as the Italian Mafia, and by various gangs, including Asian, Russian, and motorcycle gangs" without mentioning any involvement by the tobacco manufacturers themselves.

The Mohawk Council of Akwesasne, in reaction to this lawsuit, announced that they too were considering legal action--against the Canadian government! They contend that the Canadian government knew all along that the majority of the cigarettes being exported from Canada to the United States were making it back to Canada through the black market, but were heavily influenced by the powerful tobacco industry to do anything substantial about it. According to Grand Chief Mike Mitchell, "Instead of acting on this information, Canada has used the Mohawks of Akwesasne and other Mohawk Communities as the scapegoats for the problem." He called upon the Canadian government to revisit the idea of a Mohawk Border Patrol.

Although the smoke from the cigarette controversy still clouds the air, the smuggling corridor continues to present a major dilemna at Akwesasne on other fronts. The cargo of choice has gone from cigarettes (which are no longer as lucrative, thanks to a decrease in tobacco taxes) to actual human beings. Hundreds of foreign nationals have been taken across the border in the trunks of cars, tractor trailers, and leaky fishing boats. Many are abandoned on the shores of the Saint Lawrence and left wandering the roads of Akwesasne. Some are sick, some are pregnant, some are elderly, some are children. To pay for their passage, many agree to work under conditions of slavery in sweatshops in New York City. These people come from India, Pakistan, China, and numerous other countries. Some may very well be international terrorists.

Although you will occassionally see bumper stickers that read "Illegal Aliens in Trunk" or "Smuggling: It's Not Just a Job, It's an Adventure!" the smuggling of human beings is no laughing matter. Several years ago a tragedy occurred on the St. Lawrence River that was a direct result of this controversial practice. A Mohawk man was taking a family of illegal aliens across the river in a decrepit old fishing boat when it took on water and began to sink. An elderly woman drowned and another man went missing. The rest were just barely rescued when someone on shore heard their cries for help.

Aside from having Mohawk police pick these people up and turn them over to the border patrol, the Mohawk leadership has not yet dealt with the human rights issues presented by the "people trade," or by the involvement of their fellow Mohawks in the activity. While they pack their legal briefs for a return to Ottawa, another smuggler packs his trunk full of human beings and slams shut any hopes that Mohawk border crossing rights will ever be respected.

UPDATE: After thirteen years of dragging through the courts, Grand Chief Mike Mitchell's border crossing case has come to an end with a decision striking down the lower court ruling. According to the Supreme Court, Mitchell did not prove his case that the Mohawks of Akwesasne had an aboriginal right to bring trade goods across the border without paying duty. The decision is a major blow. It is still being analyzed by legal and political minds.

The following is a link to the decision itself.

Mitchell Decision

Text and Graphics © 1999/2002 by Darren Bonaparte.