Viewing cable 09OTTAWA597, NATIVE BORDER DISPUTE RAISES COMPLEX ISSUES
09OTTAWA597 2009-07-30 21:36 2011-04-28 00:00 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Ottawa
PP RUEHGA RUEHHA RUEHMT RUEHQU RUEHVC
DE RUEHOT #0597/01 2112136
ZNR UUUUU ZZH
P 302136Z JUL 09
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC PRIORITY 9721
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY
RUEHBY/AMEMBASSY CANBERRA 1442
RUEHWL/AMEMBASSY WELLINGTONUNCLAS SECTION 01 OF 03 OTTAWA 000597
E.O. 12958: N/A
TAGS: PGOV PHUM PBTS CA
SUBJECT: NATIVE BORDER DISPUTE RAISES COMPLEX ISSUES
REF: OTTAWA 594
¶1. (SBU) Summary: An ongoing dispute between Canada Border Services
Agency (CBSA) and the Mohawk aboriginal reserve of Akwesasne over
the arming of border guards on the reserve straddling the
Canada-U.S. border raises cross-cutting political, jurisdictional,
and law enforcement issues. CBSA retains the policy lead on the
file, although reaching more than a stopgap solution will require a
more integrated whole-of-government approach and some tricky
political choices. End Summary.
A STOPGAP BORDER SOLUTION
¶2. (U) The CBSA customs post on Cornwall Island (Kawehnoke) located
on the Mohawk reserve territory of Akwesasne on the Canada-U.S.
border closed on May 31. Canadian border guards had left the post
citing fears of a violent confrontation with Mohawk residents, who
opposed a CBSA directive requiring border guards to carry firearms
at the Canadian port-of-entry, effective June 1. CBSA opened an
alternate temporary border post in Cornwall, Ontario on July 13 and,
according to a Royal Canadian Mounted Police (RCMP) spokesperson,
the site is operating "very smoothly" with two lanes. The makeshift
border post is a rudimentary assembly of tents and trailers at the
base of the north span of the Seaway International Bridge linking
Cornwall to New York State. CBSA inspectors staffing the
"temporary" facility are armed.
¶3. (SBU) Officials at Canada's Department of Indian and Northern
Affairs (INAC) confirmed to poloff that, although the present
dispute involves an aboriginal community, the Department of Public
Safety (the parent department of CBSA) is responsible for handling
the dispute and that INAC is not directly engaged on the file. The
policy to arm border guards across the country fulfilled a 2006
Conservative election promise. In spite of the impasse at
Akwesasne, Minister of Public Safety Peter Van Loan has confirmed
the government's intention to implement the policy across the
country by 2016.
UNIQUE JURISDICTIONAL ISSUES
¶4. (U) The Cornwall Island crossing is the only one of CBSA's 119
border posts located on First Nations' territories and presents
unique jurisdictional issues. (The U.S. maintains a customs port
across the St. Lawrence River from Cornwall Island at Rooseveltown,
New York.) The Akwesasne Mohawk reserve straddles the Canada-U.S.
international boundary, as well as the provinces of Ontario and
Quebec and the state of New York.
¶5. (U) According to the community's own estimates, the reservation
land base includes between 11,711 and 14,648 acres of undisputed
land, with up to a further 12,000 acres subject to land claims in
both Canada and the U.S. The reserve has a total population of
approximately 13,000 Canadian and American residents. An estimated
1,800 Akwesasne Mohawks live off the reserve. Community residents
use the U.S. and Canadian ports of entry to access parts of the
reserve in Quebec and Ontario, as well as the U.S., often several
times per day. A 2002 Transport Canada study showed that Mohawk
community residents constitute 70 pct of users of the Cornwall
Island border crossing on a daily basis. When the Cornwall Island
land border crossing closed in May, Canadian Akwesasne residents
could still cross to the U.S. from Cornwall Island, but could not
return by the same route. The Mohawk community briefly ran a daily
boat service to the U.S. section of the reserve.
¶6. (U) The location of CBSA's temporary border facility in the city
of Cornwall requires Akwesasne residents to drive off reserve and
Qof Cornwall requires Akwesasne residents to drive off reserve and
into Cornwall to check in voluntarily with Canadian border guards
when they return from the United States. Although it is unclear how
CBSA will enforce this rule, a CBSA spokesperson noted on July 13
that the Agency would "use all of the tools that it normally uses to
ensure that border integrity is not compromised, including working
with community and law enforcement partners." CBSA did not comment
on how long the temporary post would remain open, and a spokesperson
would not speculate on the prospects for the return of border guards
to the reserve, noting only that the agency "continues to explore
options for long-term solutions and we remain committed to ongoing
talks with the Mohawk Council and other stakeholders to arrive at a
¶7. (U) Prior to the current dispute, stakeholders had at least
explored the possible relocation of the border crossing permanently
off reserve land. However, Cornwall's mayor underlined in July that
a fixed customs post at the present temporary location would be too
disruptive. The Seaway Bridge drops traffic in front of a shopping
mall, near residential areas. On June 12 -- after the permanent
Cornwall Island crossing closed -- the Mohawk Council of Akwesasne
(MCA) (which is the elected council for the Canadian portion of
OTTAWA 00000597 002 OF 003
Akwesasne) signed three agreements-in-principle with the Federal
Bridge Corporation Limited and Niagara Gas Transmission Limited for
the future construction of a new low-level bridge joining that point
to Cornwall Island.
IMPACT ON LAW ENFORCEMENT?
¶8. (U) When the temporary border post opened in mid-July, a RCMP
spokesperson observed that its new location was unlikely to have an
overall impact on law enforcement efforts. However, RCMP noted that
smugglers had moved more activity east of Cornwall Island to the
Quebec section of Akwesasne, and had increased activity on the water
since the Cornwall Island post closed in May. In July, federal and
state authorities in Plattsburgh, NY announced the dismantling of an
alleged billion-dollar marijuana smuggling ring (Operation Iron
Curtain) that transited the Akwesasne reserve. The bust resulted in
charges against more than 45 people from Quebec to Florida. The
ring allegedly smuggled approximately $250 million worth of
high-grade marijuana into the U.S. annually. Investigators have
estimated that 10 to 15 major Indian criminal organizations, along
with external drug rings, annually move more than $1 billion of
high-grade marijuana and Ecstasy through Akwesasne and into the U.S.
Northeast. Prosecutors have estimated that law enforcers intercept
only 2 pct of that contraband. The reserve is also reportedly a
conduit for trafficking in cigarettes, guns, and humans.
¶9. (U) Akwesasne Grand Chief Mike Mitchell acknowledged in July that
the reserve constituted a jurisdictional "grey zone" that Canadian
and American police were reluctant to enter. He called on Canada to
give the Mohawks the legislative and judicial power to stop criminal
activity. The Akwesasne Mohawk Police Services (on the Canadian
side of the reserve) and the St. Regis Mohawk Tribal Police (on the
U.S. side) already work with external law enforcement agencies. The
two forces are part of a Joint Investigative Team created in 2001
that coordinates with specialized units, such as the Integrated
Border Enforcement Team (IBET) that includes RCMP, CBSA, CBP, and
ICE, as well as the Combined Forces Special Enforcement Unit and the
Proceeds of Crime section of the RCMP.
RAISING THE "SOVEREIGNTY" ISSUE
¶10. (SBU) Relations between the Akwesasne community and the RCMP and
CBSA have long been problematic. INAC officials acknowledged that
the community may feel "squeezed" by a convergence of recent
factors, including negative publicity over smuggling, CBSA's
firearms policy, and the implementation of the U.S. Western
Hemisphere Travel initiative (WHTI) on the land border beginning
June 1. The MCA has accused CBSA agents at the Cornwall island
border post of harassment, intimidation, and racial profiling of
Mohawk residents, while the border guards' union has reported that
Mohawks on the reserve had harassed and intimidated its members.
The MCA has opposed the arming of border guards as a matter of
community safety, as well as of sovereignty. The MCA complains that
CBSA had "informed" the MCA of its plan to arm the guards, but had
failed to consult it. The MCA has insisted that the Government of
Canada should consult with it on a government-to-government level,
arguing that CBSA does not have the authority to consult, or
negotiate, on behalf of Canada.
¶11. (U) In June, the MCA filed an application in the Federal Court
of Canada for judicial review of the decision of the Minister of
Public Safety to close the Cornwall Island border crossing. The MCA
QPublic Safety to close the Cornwall Island border crossing. The MCA
wants the Court to declare the closing unlawful and to order a delay
in the deployment of firearms by CBSA pending consultations with the
Akwesasne Mohawk community. The Court has not yet heard the
¶12. (U) The MCA cites aboriginal right to cross the border freely
under Article III of the 1794 Jay Treaty of Amity, Commerce, and
Navigation between Britain and the United States, which it argues
was confirmed by Section 35 of the Canadian Constitution Act of 1982
that recognized and affirmed "the existing aboriginal and treaty
rights of the aboriginal peoples of Canada." The MCA further argues
that right of free passage has been recognized in U.S. law,
including in the 1924 Immigration Act that stipulated that nothing
contained in the Act was intended to infringe upon the right of
"American Indians born in Canada to pass the borders of the United
States," and in section 289 of the U.S. Immigration and
Naturalization Act (INA). The MCA also cites Article 19 of the UN
Declaration on the Right of Indigenous Peoples (UNDRIP), which
requires "States to consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free, prior and informed
consent before adopting and implementing legislative and
administrative measures that may affect them." (Canada and the
U.S., as well as Australia and New Zealand, voted against the UNDRIP
at the UNGA in September 2007.)
OTTAWA 00000597 003 OF 003
¶13. (SBU) According to INAC officials, Canada considers that the War
of 1812 extinguished Article III of the Jay Treaty and that it was
not therefore among the "existing" aboriginal and treaty rights
confirmed in the 1982 Constitution Act. They commented that it,
however, apparently remains a right under American law, as in the
aforementioned section 289 of the INA.
SEEKING GREATER SOVEREIGNTY?
¶14. (SBU) In elections at Akwesasne on June 27, Mike Mitchell
defeated incumbent Tim Thompson to become Grand Chief of the MCA
(the highest office on the Canadian side of the reserve). Mitchell,
who had previously served as grand chief for 18 years, was sworn in
on July 6. On July 21, Mitchell commented publicly that the removal
of the border post from the reserve was the first step in creating a
form of Mohawk sovereignty, but he underscored that he was not
seeking full sovereignty. He added that the next step would be to
redraw the Canada-U.S. boundary to exclude native land. According
to INAC officials, however, Mitchell's career had been marked by a
"continuous and aggressive pursuit" of aboriginal sovereignty, and
that Mitchell was prone to a "certain rhetorical flourish." They
advised that observers "should not be too rattled by his
declarations." Nor does INAC expect the election on July 22 of
Shawn Atleo as the new Grand Chief of the Assembly of First Nations
(AFN) -- the largest national aboriginal advocacy group in Canada --
to change the federal aboriginal agenda. INAC officials predicted
that the AFN would continue to focus on poverty alleviation and
economic development, rather than on sovereignty.
¶15. (SBU) INAC continues to work on upgrading Certificate of Indian
Status cards, including ensuring that the documents are
WHTI-compliant. The existing laminated documents, which are used to
access federal services and benefits, are vulnerable to forgery and
abuse. INAC began planning for introduction of a new Secure
Certificate of Indian Status (SCIS) in 2001, and is on track to roll
them out by the end of the year. CBSA and the Department of
Homeland Security (DHS) have approved them as WHTI-compliant
documents for land and sea crossings as an alternative to passports.
INAC officials blamed "administrative technicalities" for missing
the goal to roll-out the cards nationally by the June 1 WHTI
implementation date. INAC officials declined to specify a new
timetable apart from "in the fall."
¶16. (U) In the interim, First Nations may continue to use existing
Certificate of Indian Status cards at the border at the discretion
of U.S. border officials. Some Canadian First Nations, including
the Mohawks, have also developed aboriginal passports, which members
have sometimes presented at Canadian, U.S., and other international
ports of entry, apparently with occasional success. Canada does not
recognize the documents, but leaves it to other countries to
determine the entry documents they accept.
¶17. (SBU) Comment: Canada has so far failed to devise a lasting
resolution of the CBSA/Akwesasne dispute, sidestepping the key
issues of sovereignty and effective law enforcement. The sensitive
file appears still to lack an integrated government response, as
well as some tough political choices that could potentially alienate
either the larger Canadian public or the First Nations.
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