VZCZCXRO0627
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 WELLINGTON

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