NATIVE BORDER DISPUTE RAISES COMPLEX ISSUES

UNCLAS SECTION 01 OF 03 OTTAWA 000597 SIPDIS SENSITIVE 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 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 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 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.) 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. 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