WIKILEAKS: Border guards feared Akwesasne Mohawks

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
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FM AMEMBASSY OTTAWA
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INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY
RUEHBY/AMEMBASSY CANBERRA 1442
RUEHWL/AMEMBASSY WELLINGTONUNCLAS SECTION 01 OF 03 OTTAWA 000597
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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

viable solution."



¶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



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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

application.



¶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.)



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¶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.

UPGRADING DOCUMENTATION

-----------------------

¶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.

BREESE